UC-NRLF 


THE  NEW  STAR  CHAMBER 

AND  OTHER  ESSAYS 


BY 


EDGAR  LEE  MASTERS 


THE  NEW  STAR 
CHAMBER  AND 
OTHER  ESSAYS 

By  EDGAR    LEE     MASTERS 


Oh  ye  people  who  are  free,  remember 
the  maxim  that  liberty  may  be  ac 
quired  but  never  recovered. 

— Rousseau. 


THE   HAMMERSMARK    PUBLISH- 
ING    COMPANY,     CHICAGO,     1904 


COPYRIGHT,    1904, 
BY 

EDGAR  LEE  MASTERS. 


IOHN    F.     HlttGINB    PRINT,     C^^^I^SDaO      196-10*    CLARK    CTRKKT 


'   ' 


TO    MY    FATHER. 
HARDIN    WALLACE    MASTERS, 


NOTE. 

Several  of  the  essays  in  this  book  were  published 
during  the  campaign  of  1900,  or  within  a  short  time 
after.  Many  of  them  relate  to  the  imperial  policy  of 
the  United  States  which  grew  out  of  the  war  with 
Spain.  These  essays  preserve,  to  some  extent,  the 
thought  which  was  current  during  a  portion  of  the 
development  of  that  policy;  and  may  therefore  have 
an  historical  value,  even  if  they  do  not  profoundly 
discuss  the  constitutional  questions  at  issue. 

Others  of  these  essays  have  never  before  been  pub 
lished;  among  which  the  one  entitled  "Implied  Pow 
ers  and  Imperialism"  was  designed  to  go  so  thorough 
ly  into  the  fallacy  upon  which  imperialism  rests  that 
the  essays  upon  the  Philippine  question  might  be  con 
stitutionally  rounded  out.  If  this  book  shall  prove 
in  any  manner  to  be  a  contribution  to  the  literature  of 
liberty,  I  shall  feel  that  the  time  and  the  labor  of  its 
composition  were  not  wasted. 

E.  L.  M. 


TABLE  OF  CONTENTS. 


PAGE 

The  New  Star  Chamber 9 

Theodore  Roosevelt 25 

John   Marshall , 37 

Thomas  Jefferson. 51 

Alexander  Hamilton 65 

Implied  Powers  and  Imperialism , 78 

Elect  the  Federal  Judges 115 

Despotism  Revamped 133 

The  Philippine  Conquest. .  .1 150 

The  New  Policy 161 

Political  Tendencies 176 

Mr.  Bryan's  Campaigns 185 

Observations  on  Democracy 201 


THE  NEW  STAR  CHAMBER. 

If  it  be  remembered  that  positive  law  and  judicial 
interpretation  proceed  from  the  ebb  or  flow  of  human 
emotions  no  difficulty  can  be  encountered  in  explain 
ing  those  revivals  of  regulations  and  restrictions 
which  preceding  ages  have  repudiated.  Human  na 
ture  undoubtedly  improves  and  may  always  be  capa 
ble  of  improvement.  But  human  nature  in  its  essen 
tial  passions  remains  constituent  and  integral.  Below 
these  passions  are  human  needs  which  produce  activi 
ties  of  all  sorts  to  obtain  the  means  of  life.  And  this 
is  the  rudimentary  spring  of  human  action  out  of 
which  the  whole  drama  of  life  is  produced.  As  these 
needs  are  gratified  or  repressed;  or  in  brief,  as  the 
economic  question  is  regarded  so  are  the  laws  framed 
and  administered.  If  in  the  production  of  wealth  the 
laws  are  unequal  and  if  in  its  distribution  the  laws 
are  unequal,  the  administration  of  these  laws  must 
preserve  the  inequality  so  established.  And  so  out  of 
the  process  of  acquiring  and  holding  land  and  per 
sonal  property;  and  out  of  the  process  of  producing 
and  distributing  wealth  have  arisen  those  laws  which 
struck  at  human  liberty.  And  at  the  bottom  of  these 
we  perceive  the  play  of  human  passion.  Particular 
desires  may  exhaust  themselves,  or  be  eradicated; 
others  may  meet  with  counter  desires  and  sink  into 
deeper  channels  only  to  arise  in  a  succeeding  century 


THE   NEW    STAR   CHAMBER. 

clothed  in  some  other  form.  But  whenever  powerful 
factions  renew  the  same  ends  the  means  of  their  at 
tainment  are  likely  to  be  of  the  same  character  as 
those  employed  before. 

What  prophetic  insight  had  the  author  of  that  apo 
thegm  which  reads  "The  love  of  money  is  the  root 
of  all  evil."  It  is  the  love  of  money  which  strikes  at 
liberty  to  cripple  the  economic  power  of  men;  and  it 
is  the  love  of  money  which  resorts  to  dissimulation  in 
order  to  obscure  the  campaign  that  is  being  waged. 
For  liberty  was  never  attacked  under  the  banner  of 
despotism;  but  always  under  the  banner  of  liberty. 
Religious  and  political  persecutions  and  the  sanguin 
ary  administration  of  internal  government  have  al 
ways  held  aloft  the  standard  of  liberty,  or  the  general 
welfare.  Nor  is  it  remarkable  now  that  the  sponsors 
of  the  "labor  injunction"  should  urge  in  its  defense 
its  efficacy  in  preserving  the  liberty  of  the  employer 
to  hire  whom  he  pleases;  and  the  liberty  of  all  men 
to  obtain  work  without  molestation.  This  is  the 
out-worn  sophistry  of  kings  and  the  complaint  and 
ferocious  magistrates  who  did  their  will.  The  labor  in 
junction  is  what  Lord  Tennyson  called  a  "new-old 
revolution."  It  is  the  skeleton  of  the  Star 
Chamber  drawing  about  its  tattered  cerements 
the  banner  of  a  free  people  and  masking  its 
face  with  a  similitude  of  the  republic.  The  labor  in 
junction  is  insidious  and  plausible.  It  speaks  the  lan 
guage  of  liberty.  It  disarms  criticism  because  brought 
into  use  in  times  of  disorder;  and  because  it  avows 
nothing  but  salutary  purposes.  It  has  put  itself  upon 
such  a  footing  that  the  irrelevant  conclusion  is  drawn 

10 


THE   NEW   STAR   CHAMBER. 

against  its  enemies  that  because  they  are  opposed  to 
it  they  moist  be  opposed  to  law  and  order ;  while  those 
who  favor  it  are  the  friends  of  law  and  order.  So 
that,  as  in  many  similar  instances,  people  forget  that 
to  overthrow  the  law  to  punish  a  breach  of  the  law 
is  to  meet  anarchy  with  anarchy  itself.  Why  should 
not  the  lawful  way  already  provided  be  followed  in 
the  punishment  of  wrong?  The  spirit  which  advo 
cates  the  lawless  labor  injunction  is  the  same  essen 
tial  spirit  which  animates  the  mob.  This  spirit  can 
not  successfully  hide  itself  behind  the  high  sounding 
acclaims  of  law  and  order.  It  will  be  ultimately 
dragged  to  the  light  for  every  eye  to  see.  When  that 
time  shall  arrive  the  fact  will  be  recognized  that  the 
same  tyrannical  purpose  which  erected  the  Star  Cham 
ber,  turned  a  court  of  chancery  into  an  engine  of  law 
less  power. 

Mr.  Hallam,  who  wrote  most  authoritatively  of  the 
English  Constitution  said  that  the  course  of  proceed 
ing  in  the  Star  Chajmber  "seems  to  have  nearly  re 
sembled  that  of  the  chancery."  But  observe  that  the 
same  reasoning  which  supported  the  Star  Chamber 
fortifies  the  chancery  court  to-day  in  the  use  of  the 
labor  injunction.  The  Star  Chamber  was  established 
to  secure  good  government.  The  chancery  court 
has  resorted  to  the  process  of  injunction  to  secure 
good  government.  The  Star  Chamber's  powers  were 
directed  towards  preventing  riots  and  unlawful  assem 
blies.  The  labor  injunction  of  a  chancery  court  is 
issued  to  prevent  riots  and  unlawful  assemblies.  In 
the  Star  Chamber  there  was  no  indictment.  In  the 
chancery  court  there  is  no  indictment.  In  the  Star 

ii 


THE   NEW   STAR   CHAMBER. 

Chamber  there  were  no  witnesses,  and  the  evidence 
was  produced  in  writing  and  read  to  the  council.  So  in 
the  chancery  court  in  the  trial  of  contempt  for  vio 
lating  the  injunction  there  are  no  witnesses  but  the 
-  evidence  is  produced  in  writing  and  read  to  the  chan 
cellor.  In  the  Star  Chamber  there  was  no  trial  by 
jury.  In  the  chancery  court  there  is  no  trial  by  jury. 
In  the  Star  Chamber  the  council  could  inflict  any 
punishment  short  of  death,  and  frequently  sentenced 
objects  of  its  wrath  to  the  pillory,  to  whipping  and 
to  the  cutting  off  of  ears.  In  the  chancery  court  the 
chancellor  may  inflict  any  punishment  short  of  death 
or  imprisonment  in  the  penitentiary,  subject  to  vague 
limitations  arising  from  inference,  and  subject  to  the 
discretion  of  a  reviewing  court.  With  each  embar 
rassment  to  arbitrary  power  the  Star  Chamber  be 
came  emboldened  to  undertake  further  usurpation. 
And  with  each  necessity  of  monopoly  the  chancery 
courts  have  proceeded  to  meet  the  necessity.  The  Star 
Chamber  finally  summoned  juries  before  it  for  ver 
dicts  disagreeable  to  the  government,  and  fined  and 
imprisoned  them.  It  spread  terrorism  among  those 
who  were  called  to  do  constitutional  acts.  It  im 
posed  ruinous  fines.  It  became  the  chief  defence  of 
Charles  against  assaults  upon  those  usurpations 
which  cost  him  his  life.  From  the  beginning  it  defied 
Magna  Charta  in  denying  jury-trial,  in  forcing  men 
to  incriminate  themselves,  or  what  is  scarcely  less  re 
pugnant  to  reason,  to  manifest  their  innocence.  While 
to-day  the  chancery  courts  defy  the  written  constitu 
tion  of  the  states  and  of  the  federal  government  in 
denying  jury  trials  and  forcing  men  to  incriminate 

12 


THE   NEW   STAR  CHAMBER. 

themselves  or  to  manifest  their  innocence.  At  last 
with  the  inhuman  punishment  administered  by  it 
to  Prynn,  Burton  and  Bastwick,  the  people  long!  cul 
tivated  by  the  constitutional  lawyers  of  England  pro 
cured  its  abolition.  Can  the  chancery  courts  of  this 
country  expect  to  escape  appropriate  discipline  when 
the  time  shall  arrive  that  the  eyes  of  the  people  shall 
see  that  these  courts  have  habitually  over-ridden  the 
laws  of  the  land? 

For,  be  it  understood,  the  chancery  court  in  its 
inception  was  a  regal  invention?  Its  powers,  its  prac 
tices,  its  code  are  of  pure  consuetudinary  growth.  It 
began  by  interfering,  through  the  king  himself,  with 
the  administration  of  the  law  by  the  regularly  consti 
tuted  courts.  It  began  weak.  It  grew  strong  by 
silent  and  gradual  encroachment.  Its  suitors  multi 
plied  until  the  king  committed  its  control  to  his  chan 
cellor.  Its  decisions  have  always  depended  upon  the 
conscience  of  the  chancellor.  While  pretending  to 
limit  itself  to  subjects  not  triable  in  the  law  courts, 
or  where  the  law  courts  afforded  an  inadequate  rem 
edy,  it  grew  to  take  cognizance  of  matters  which  were 
clearly  triable  by  a  jury.  There  has  been  serious  con 
flict  between  the  chancery  courts  and  the  law  courts 
from  the  time  of  Sir  Edward  Coke  to  this  day.  But 
notwithstanding  doubts  as  to  the  precise  powers  of 
the  chancery  courts  it  is  perfectly  sure  that  they  never 
had  jurisdiction  of  crimes;  or  to  pass  upon  torts;  or 
trespasses,  except  under  very  limited  regulations ;  and 
never  in  short  had  jurisdiction  to  pass  upon  any  sub 
ject  where  the  law  courts  furnished  an  adequate  rem 
edy,  or  where  jury  trial  was  a  necessitous  and  consti- 

13 


THE   NEW    STAR   CHAMBER. 

tutional  mode  of  examination.  For  a  chancery  court 
is  not  equipped  with  a  jury.  Hence  where  it  assumes 
to  adjudicate  subjects  outside  of  the  domain  of  its 
jurisdiction,  jury  trial  falls,  not  because  it  has  gone 
outside  of  its  sphere  as  to  the  subject,  but  because  it 
has  retreated  into  its  sphere  as  to  the  procedure. 
This  is  all  that  can  be  made  out  of  a  refusal 
of  a  jury  trial  in  contempt  proceedings.  It  is  rare 
dissimulation  which  countenances  a  theft  of  jurisdic 
tion  on  one  hand,  but  insists  upon  the  other  hand  in 
a  strict  regard  for  the  jurisdictional  method  of  deal 
ing  with  the  subject  matter  after  the  theft.  The  man 
who  stole  meat  but  refused  to  eat  it  on  Friday  is  the 
analogue  of  the  chancery  court  Which  denies  a  jury 
trial  of  a  charge  of  disobeying  a  labor  injunction,  on 
the  ground  that  a  jury  trial  is  not  an  adjunct  of  a 
chancery  court. 

Now  as  to  the  subject-matter  of  the  extraordinary 
injunctions  resorted  to  by  the  chancery  courts  in  the 
last  decade  it  must  never  be  forgotten  that  it  is  purely 
economic.  Between  the  employer  and  the  employe 
the  essential  question  is  economic.  The  employer 
wants  labor  cheap;  the  employe  wants  it  dear.  The 
conflict  between  these  desires  is  an  aspect  of  indus 
trial  competition.  When  these  desires  cannot  be  com 
promised  into  harmony  the  result  is  a  strike.  We 
then  have  the  following  history  of  things  preceding 
the  issuance  of  a  labor  injunction:  First  a  dissatis 
faction  on  the  part  of  the  laborers  with  their  wages 
or  terms  of  employment,  which  may  be  well  or  ill 
founded;  second,  a  simultaneous  quitting  by  the 
laborers  of  their  employment;  third,  some  of  these 


THE  NEW   STAR   CHAMBER. 

laborers  go  into  the  streets,  in  behalf  of  all,  to  notify 
other  men  who  would  take  the  places  deserted  that 
there  is  a  strike  and  why  it  was  resorted  to,  and  to  cir 
culate  hand-bills  requesting  men  not  to  take  the  old 
places  and  thus  break  the  strike.  There  may  be 
clashes  on  the  street  resulting  from  all  the  countless 
circumstances  which  attend  a  time  of  inflamed  feel 
ings.  And  fourth,  the  employer  either  cannot  get  any 
help,  or  can  get  so  little  help  that  his  business  is 
stopped.  Now,  to  analyze  the  character  of  these  acts 
it  is  obvious  that  no  law  forbids  any  man  from  being 
dissatisfied  with  his  terms  of  employment,  whether 
he  does  so  reasonably  or  unreasonably.  No  law  for 
bids  a  man  or  body  of  men  from  quitting  their  work 
either  singly  or  in  a  body.  No  law  prevents  men  from 
being  in  the  streets.  No  law  prevents  them  from  talk 
ing,  or  from  circulating  hand-bills  which  contain  no 
malicious  defamation.  So  far  then  every  act  done  is 
legal.  If  these  men  resort  to  violence  or  crime  of  any 
sort  then  they  are  amenable  to  a  good  many  different 
laws — but  only  in  a  criminal  court  and  not  in  a  court 
of  chancery.  But  the  labor  injunction  which  follows 
upon  the  development  of  the  foregoing  conditions 
gathers  under  its  inhibition  two  general  classes  of 
acts.  It  forbids  the  commission  of  crimes  and  torts 
because  they  injure  the  employer's  business.  The  in 
jury  to  business  is  coupled  with  the  crime  to  dodge 
the  law  already  referred  to  that  the  chancery  courts 
have  no  jurisdiction  over  crimes.  It  forbids  the  doing 
of  innocent  acts  like  talking,  circulating  hand-bills 
and  being  on  the  street,  because  they  are  said  to  be 
the  component  acts  of  a  conspiracy  to  injure  the  em- 

15 


THE  NEW   STAR  CHAMBER. 

ployer's  business.  Thus  innocent  acts  are  interdicted ; 
thus  conspiracies  are  interdicted;  although  conspira 
cies  are  crimes  of  which,  as  shown,  a  court  of  chan 
cery  has  no  jurisdiction.  And  so  innocent  acts  are 
interdicted  because  they  relate  to  the  commission  of 
a  crime — the  alleged  conspiracy — and  the  crime — the 
alleged  conspiracy — is  interdicted  because  it  injures 
business.  This  is  precisely  the  sort  of  jup-gling  that 
the  patrons  of  the  Star  Chamber  employed. 

But  does  the  fact  that  a  crime  injures  business  fur 
nish  legal  warrant  for  enjoining  its  commission? 
Burglary,  larceny,  arson,  forgery,  cheating,  counter 
feiting  and  many  other  crimes  injure  business  just  as 
much  as  a  strike  does;  and  yet  no  one  pretends  that 
these  crimes  can  be  enjoined  by  a  court  of  chancery. 
Such  a  pretense  violently  incurs  the  organic  law  which 
has  thrown  about  every  man  charged  with  crime  the 
right  to  have  it  specifically  set  out  in  an  indictment; 
to  meet  the  witnesses  face  to  face,  and  to  have  the 
question  of  fact  of  his  guilt  or  innocence  passed  upon 
by  a  jury.  But  if  a  court  of  chancery  enjoin  the  crime 
and  some  one  is  supposed  to  have  committed  it  the 
chancery  court  insists  upon  trying  the  man  charged 
upon  affidavits  and  without  a  jury.  Hence  courts  of 
chancery  either  have  no  power  to  enjoin  such  things, 
or  having  enjoined  them  must  proceed  in  dealing  with 
them  according  to  the  constitution  relating  to  such 
subjects.  If  courts  of  chancery  cannot  in  dealing  with 
such  things  afford  indictments,  witnesses  and  juries 
then  it  cannot  have  power  to  deal  with  them  at  all; 
because  the  constitution  provides  for  an  indictment, 
for  confrontation  of  the  witnesses  and  for  jury  trial 

16 


THE   NEW   STAR  CHAMBER. 

in  the  most  absolute  terms.    And  to  say  that  a  court 
of  chancery  may  enjoin  crimes  which  injure  business, 
is  to  say  that  it  has  jurisdiction  of  all  crimes  against 
the  rights  of  property  and  of  all  crimes  which  indi 
rectly  affect  property  rights,  which  is  absurd.     No 
one  carries  the  argument  that  far.     For  if  it  should 
be  carried  that  far  then  the  criminal  courts  would 
yield   to  the   chancery   courts,   and  the  constitution 
would  be  so  palpably  nullified  that  no  one  could  be 
befooled  on  the  subject.    So  then,  to  recapitulate,  the 
chancery  courts  have  no  power  over  crimes  of  them 
selves  ;  they  have  no  power  over  crimes  because  they 
injure  business,  for  the  incident  of  injury  to  business 
is  not  distinctive  of  those  acts  prohibited  by  labor 
injunctions,  but  pertains  to  many  crimes  and  wrongs; 
and  therefore  nothing  has  been  added  to  the  crime 
itself  which  gives  the  chancery  court  power  over  it. 
On  this  point  the  defender  of  labor  injunctions  must 
either  show  that  the  offenses  prohibited  by  labor  in 
junctions  are  peculiar  in  their  injury  to  business  or 
property  interests;  or  he  must  admit  that  such  injury 
flows  from  a  great  variety  of  offenses  and  so  be  carried 
by  the  force  of  the  admission  to  the  manifest  absurdity 
of    asserting    that    the    chancery    court    may    enjoin 
burglary,  larceny,  swindling  and  other  crimes.     This 
dilemma  leads  the  defender  of  the  labor  injunction  to 
say  that  while  the  vitality  of  the  injunction  depends 
upon  the  theory  that  the  act  enjoined  is  a  crime,  still 
that  the  court  does  not  punish  one  who  has  violated 
a  labor  injunction  for  a  crime,  but  for  disobedience  of 
the  injunction  of  the  court.     That  is,  if  men  are  en 
joined  from  prosecuting  a  conspiracy  and  are  found 

17 


THE   NEW    STAR   CHAMBER. 

guilty  of  having  done  so,  the  court  in  fining  and 
imprisoning  them  does  so  not  for  having  prosecuted 
the  conspiracy  but  for  having  prosecuted  the  con 
spiracy  in  disobedience  of  the  court's  order.  Usurpa 
tion  and  hypocrisy  have  never  been  more  thinly 
veiled.  A  punishment  in  contempt  proceedings  for 
having  violated  a  labor  injunction  must  be  either  for 
having  done  a  wrongful  act,  or  for  having  done  a 
wrongful  act  in  disobedience  of  a  court's  inhibition. 
For  an  act  which  is  meritorious  or  lawful  can  be  done 
by  any  one  in  spite  of  a  court's  inhibition  not  to  do 
it.  If  the  court  should  seek  to  punish  one  for  doing 
a  meritorious  or  a  lawful  act  a  complete  defense  to 
the  prosecution  would  be  that  the  act  was  lawful  or 
meritorious ;  and  the  court  could  not  punish  for  mere 
disobedience  of  an  order  forbidding  the  doing  of  such 
lawful  or  meritorious  act.  No  one  can  deny  that  if 
a  court  has  forbidden  what  the  law  does  not  forbid 
it  should  and  must  expect  to  be  contemned.  So  that 
as  no  injunction  is  worth  while  unless  lawful  punish 
ment  can  be  inflicted  for  disobeying  it,  the  injunction 
must  forbid  something  which  the  law  forbids,  such 
as  the  crime  of  conspiracy.  Now  if  conspiracy  were 
a  meritorious  thing  it  would,  as  shov/n,  be  useless  to 
enjoin  it,  for  if  it  were  enjoined  it  might  be  done  with 
impunity.  It  is  because  conspiracy  is  wrong  that  the 
general  law  of  contempt  can  be  argued  to  warrant 
summary  punishment  where  a  conspiracy  is  carried 
on  in  the  face  of  an  injunction.  Is  the  punishment  for 
the  disobedience  of  the  injunction?  This  cannot  be 
true.  Because  the  doing  of  a  legal  act,  though  en 
joined,  cannot  be  punished  as  a  contempt.  Therefore 

18 


THE   NEW   STAR   CHAMBER. 

disobedience  of  an  injunction  of  itself  cannot  be  pun 
ished  as  a  contempt.  It  therefore  results  that  the 
thing  punished  is  the  crime.  The  disobedience  is  an 
invention  of  a  dissembling  jurisprudence.  It  is  one 
of  those  fictions  of  law  in  which  Anglo-Saxon  juris 
prudence  has  been  absurdly  and  injuriously  prolific. 
But  the  disobedience  is  not  essential.  The  invariable 
element  is  the  wrongfulness  of  the  act.  The  crime 
or  wrong  is  the  basis  of  disobedience.  It  is  the  sub 
stance  of  the  disobedience.  It  interpenetrates  the 
disobedience,  however,  the  subject  is  viewed. 

Generally  speaking  labor  injunctions  enjoin  the  com- 
miission  of  crimes.  But  this  may  be  stated  in  an 
other  way.  They  enjoin  crimes,  such  as  assaults; 
and  they  enjoin  innocent  acts  like  talking  and  being 
in  the  streets;  because,  it  is  alleged,  these  innocent 
acts  are  done  pursuant  to  a  combination  to  injure 
the  employer's  business.  So  the  combination,  that 
is,  the  "conspiracy,"  is  enjoined;  and  likewise  all 
acts  innocent  or  otherwise,  done  in  prosecution  of  the 
"conspiracy."  Comprehensively  speaking  the  labor 
injunction  covers  crimes;  and  essentially  speaking  it 
concerns  itself  with  what  is  called  a  "conspiracy." 
The  invention  of  "conspiracy"  as  applied  to  strikes 
is  in  line  with  the  whole  policy  of  monopoly  which 
quotes  scripture  for  a  purpose.  Admitting  for  the 
time  that  a  combination  of  men  to  secure  better 
wages  is  a  conspiracy  the  charge  comes  with  poor 
grace  from  that  side  of  the  world  which  has  been  in 
a  league  against  popular  rights  and  equal  laws  from 
the  dawn  of  history.  So  long  ago  as  1776  Adam  Smith 
declared  that  masters  are  everywhere  in  a  tacit  but  con- 


THE   NEW    STAR   CHAMBER. 

stant  and  united  combination  not  to  raise  wages  above 
their  actual  rate.  Is  this  not  the  undeniable  truth  to 
day?  John  Stuart  Mill  denounced  the  labor  laws  of 
Elizabeth's  reign,  passed  by  a  parliament  of  employers 
as  evincing  the  infernal  spirit  of  the  slave  driver.  But 
these  injunctions  are  nothing  but  a  form  of  labor  laws 
directed  to  the  point  of  keeping  down  the  rate  of 
wages.  Every  tariff  act  is  the  result  of  a  confeder 
ation  of  manufacturers;  and  every  tariff  act  injures 
the  business  of  those  who  make  the  tariff  profitable. 
Yet  there  is  no  charge  of  conspiracy  and  no  injunction 
concerning  it.  Combinations  of  capital  and  the  con 
solidation  of  corporations  injure  the  business  of  those 
who  are  thereby  more  effectually  preyed  upon;  yet 
there  is  no  charge  of  conspiracy  and  no  injunction 
concerning  these  things.  Employers  are  leagued  to 
gether  to-day  under  various  deceptive  names  for  the 
purpose  of  dominating  labor.  To  do  this  they  have 
contributed  large  amounts  to  a  common  treasury  to 
be  used  in  court  proceedings  and  in  legislative  halls 
against  labor.  This  injures  the  business  of  the  la 
borer;  and  yet  there  is  no  charge  of  conspiracy  and 
no  injunction  concerning  it.  The  Philippine  conquest 
was  the  result  of  a  compact  among  the  trusts  to  get 
trade ;  and  this  hurts  the  business  of  all  not  interested ; 
and  yet  there  is  no  charge  of  conspiracy  as  to  this! 
What  ethical  gnat  are  these  patrons  of  law  and  order 
straining  at  who  conjure  with  the  word  "conspiracy" 
when  men  strike  for  better  wages?  What  ethical 
camels  have  they  not  swallowed  ?  What  burdens  have 
they  not  imposed  growing  out  of  their  "conspiracies" 

20 


THE  NEW  STAR  CHAMBER. 

and  which  they  have  not  moved  with  one  of  their 
fingers? 

Nevertheless  and  in  spite  of  all  objections  the  courts 
have  uniformly  held  that  workingmen  may  combine 
for  the  purpose  of  bettering  their  condition.  That  a 
body  of  men  may  at  will,  wisely  or  unwisely,  cease 
their  relations  with  an  employer;  that  they  may 
maintain  a  peaceable  picket  and  employ  peaceable  per 
suasion  directed  toward  preventing  men  from  taking 
service  with  the  employer.  But  if  these  allowable 
acts  inflict  injury  upon  the  employers  then  it  is  said 
that  the  allowable  acts  become  unlawful.  They  be 
come  a  conspiracy;  because,  it  is  held,  that  they  are 
done  for  the  purpose  of  inflicting  injury  which  is  an 
unlawful  end.  No  account  is  taken  of  the  fact  that 
the  ulterior  end  of  the  strike  is  to  obtain  better  wages 
and  that  the  injury  is  inflicted  as  an  instrumentality. 
So  that  if  men  for  the  purpose  of  bettering  their  own 
condition  and  in  the  line  of  labor  competition  may  not 
inflict  injury  upon  their  employer,  then  the  situation 
simply  is,  that  they  may  strike,  that  is,  cease  to  work ; 
but  only  when  it  does  not  injure  their  employer.  But 
if  the  ceasing  to  work  does  not  injure  their  employer 
then  the  employer  will  be  indifferent  thereto,  and  the 
mien  must  eat  whatever  bread  is  given  them.  On  the 
contrary  if  the  ceasing  to  work  does  injure  the  em 
ployer  then  such  act,  according  to  the  employer,  be 
comes  unlawful.  So,  it  is  seen,  that  in  either  of  these 
situations  the  employer  is  given  the  whole  field  of 
benefit  and  power  and  the  men  are  reduced  to  a  con 
dition  of  industrial  impotence.  This  is  the  whole  of 
the  argument.  But  while  such  restrictions  upon  the 

21 


THE   NEW   STAR   CHAMBER. 

conduct  of  laborers  result  from  the  premise  of  the  in 
jury  to  the  employer's  business,  the  employer  is  held 
to  be  privileged  to  hire  whom  he  pleases  and  to  dis 
criminate  against  whom  he  pleases.  His  discrimina 
tion  consists  in  retiring  the  strikers  from  the  labor 
market  by  an  injunction;  and  his  privilege  follows 
after  when  the  field  is  occupied  by  men  who  for  one 
reason  or  another  will  work  at  the  master's  price. 
Freedomj  to  give  work  at  our  own  price  and  freedom 
to  you  to  obtain  work,  but  only  at  our  price,  has  been 
the  creed  of  the  monopolist  from  all  times. 

Limiting  the  discussion  to  a  combination  of  men 
who  do  lawful  acts  which  injure  the  employer  and  in 
duce  him  to  capitulate  and  grant  the  wages  asked,  it 
may  be  pertinently  asked  what  law  can  be  invoked  to 
interfere  with  such  a  form  of  competition?  Every 
merchant  is  engaged  in  injuring  the  business  of  his 
competitor.  Every  advertisement  is  a  persuasion  ad 
dressed  to  buyers  to  forsake  one  merchant  and  to  deal 
with  the  advertiser.  Every  lowering  of  price  of  com 
modities  for  sale  is  an  injury  to  those  who  have  them 
for  sale  and  who  must  likewise  lower  the  price  or  lose 
custom.  Every  simplification  of  production,  every 
elimination  of  waste,  every  combination  of  faculties  or 
devices  by  which  trade  is  secured  injures  the  business 
of  those  to  whom  these  expedients  are  impossible. 
The  whole  domain  of  traffic  under  the  competitive 
system  is  interpenetrated  with  injury  to  some  and 
benefit  to  others.  Long  hours  and  low  wages  injure 
the  business  of  the  laborer.  Pauper  labor  injures  the 
business  of  the  citizen  laborer.  Leagues  of  employers 
inspired  by  the  policy  of  controlling  the  labor  market 

22 


THE   NEW   STAR   CHAMBER. 

injure  the  business  of  the  laborer.  Lock-outs  resorted 
to  by  employers  whether  as  the  result  of  combination 
or  otherwise  injure  the  business  of  the  laborers.  Is  it 
possible  then  that  laborers  may  not  in  the  course  of 
competition  compel  their  employers  to  raise  wages 
and  lower  hours  or  to  accede  to  any  regulation  lawful 
in  itself  by  which  wages  and  hours  of  service  may  be 
presently  established  and  secured  for  the  future?  If 
men  can  only  strike  and  retire  from  the  competitive 
field  and  go  elsewhere  for  work  then  the  employer  is 
relieved  of  competition. 

By  organization  and  the  use  of  courts  he  has  abol 
ished  that  competition  by  which  he  would  have  to  pay 
higher  wages  and  suffer  injury  in  his  business;  and 
has  taken  the  high  ground  where  he  can  pay  low 
wages  without  competition  and  injure  the  business  of 
the  laborers.  This  is  the  ultimate  substance  of  the 
question,  stripped  of  its  pretense  and  its  sophistry. 

Yet  some  one  asks  what  shall  be  done  if  strikers 
resort  to  violence  and  assaults ;  if  they  intimidate  and 
riot  and  destroy  property?  This  is  a  simple  question. 
The  criminal  code  expressly  prohibits  such  things,  and 
if  they  are  done  the  criminal  courts  will  and  should 
punish  them.  But  the  very  reason  that  the  criminal 
courts  are  not  resorted  to  while  the  chancery  courts 
are  is  precisely  because  the  employer  wants  to  be 
assisted  in  his  economic  struggle;  and  is  either  per 
sonally  indifferent  to  these  acts  except  as  they  bear 
upon  the  economic  question,  or  because  these  acts  are 
not  done  so  extensively  or  so  often  as  represented. 
Nero  burned  Rome  and  charged  the  Christians  with  it. 
And  this  subterfuge  has  been  practiced  always  as  a 

23 


THE   NEW   STAR   CHAMBER. 

tactical  move  in  a  campaign  of  extermination.  For 
nothing  relaxes  objection  and  silences  criticism  upon 
usurpation  so  much  as  the  creation  of  a  condition 
which  strengthens  the  "Must-do-something"  policy. 
Nothing  has  helped  the  employer  so  much  in  the 
plainly  lawless  and  forbidden  use  of  the  writ  of  in 
junction  as  that  condition  of  violence  which  he  so 
loudly  deplores.  Does  the  employer  produce  this  con 
dition  himself?  It  has  been  proven  in  some  cases  that 
he  does.  But  whether  he  does  or  not  the  argument 
that  the  constitution  in  all  its  requirements  should  be 
supported  and  jealously  preserved  is  not  in  the  least 
affected.  The  only  hope  of  liberty  is  a  conscientious 
regard  for  its  canons,  most  of  which  are  expressed  in 
the  written  Constitution  of  the  Republic  and  the  State 
Republics. 


24 


THEODORE  ROOSEVELT. 

The  rise  of  Mr.  Roosevelt  to  the  presidency  of  the 
United  States  brought  into  the  arena  of  world  inter 
ests  a  third  figure  similar  in  temperament  and  imag 
ination  to  two  others  who  had  before  his  time  occu 
pied  conspicuous  places  in  current  history.  In  poetry, 
in  philosophy  and  in  statesmanship  movements  are 
distinguished  by  schools  of  men  who  are  animated  by 
the  same  inspiration.  Germany  furnishes  the  illustra 
tion  of  Goethe  and  Schiller;  France  that  of  Voltaire 
and  Rousseau;  England  that  of  Fox,  Pitt  and  Burke, 
and  later,  in  poetry,  that  of  Shelley,  Byron  and  Cole 
ridge.  In  America,  Emerson,  Alcott,  Thoreau  and 
Margaret  Fuller  developed  the  transcendental  philos 
ophy;  while  in  statesmanship  we  associate  upon  gen 
eral  principles  the  names  of  Jefferson,  Madison  and 
Monroe;  or  those  of  Webster  and  Clay. 

The  tide  of  imperialism  did  not  reach  America  until 
the  war  with  Spain  was  concluded.  Its  waters  had 
lapped  the  foundations  of  other  governments  long  be 
fore;  and  even  in  America  discerning  intellects  saw 
the  drift  of  the  current  as  early  as  the  war  between  the 
states.  That  war  elevated  a  school  of  political  think 
ers  who  placed  government  above  men  and  who  were 
bewitched  with  those  policies  of  special  privilege 
which  centralized  the  government  and  prepared  it  for 
the  final  step.  Mr.  McKinley  nevertheless  may  be 

25 


THEODORE  ROOSEVELT. 

said  to  have  ended  the  line  of  the  familiar  school  of 
American  presidents.  His  physical  appearance  was 
of  that  character  for  which  the  people  are  accustomed 
to  look  in  the  selection  of  their  presidents.  His  man 
ner  and  his  speech  were  modeled  after  the  presiden 
tial  type.  And  yet  he  bore  some  resemblance  to  Au 
gustus  Caesar.  Like  the  latter,  Mr.  McKinley  was  a 
dissembler;  he  was  plausible;  he  was  crafty.  He 
kept  the  people  convinced  that  no  change  was  being 
made  in  their  government  even  in  the  face  of  apparent 
facts.  But  with  the  rise  of  Mr.  Roosevelt  the  trans 
formation  was  no  longer  concealed  which  had  been 
obscured  by  the  platitudes  and  the  pious  fallacies  of 
his  predecessor.  Mr.  Roosevelt  obtrudes  his  imperial 
plans  and  preferences  instead  of  hiding  them.  His 
demagoguery  consists  in  appeals  to  the  brutal  tenden 
cies  in  man,  through  slouch  hat  and  clanking  spur 
and  through  crude  familiarities  with  soldiers  and 
policemen.  Yet  in  this  apparel  he  is  as  far  from  the 
presidential  figure  as  possible.  The  cropped-hair,  the 
nose-glasses  with  the  flying  thread  attached,  the  facial 
mannerisms  and  eccentricities  place  him  apart  from 
the  dignified  and  courtly  school  of  Buchanan,  Garfield, 
Cleveland,  Harrison  or  McKinley.  If  Mr.  Roosevelt's 
successor  shall  wear  a  monocle  and  lead  a  pug  dog, 
we  ought  not  to  marvel. 

When  Mr.  Roosevelt  became  president  both  what 
he  was  himself  and  what  the  times  were,  made  it  en 
tirely  appropriate  that  he  should  take  his  place  beside 
Mr.  Kipling  and  Emperor  William.  These  three  men 
are  the  product  of  the  same  mood  of  nature.  They 
are  moved  by  the  same  ideals,  if  those  convictions  can 

26 


THEODORE  ROOSEVELT. 

be  called  such  which  lead  men  into  the  ways  of  vul 
garity  and  violence.  Mr.  Kipling  was  reared  in  the 
most  extensive,  as  well  as  the  most  despotic  depen 
dency  of  Great  Britain.  He  had  drunk  to  the  full  at 
the  fountain  of  blood  and  gold.  The  history  of  Great 
Britain's  dominion  over  India  is  one  of  chicane  and 
murder,  hypocrisy  and  plunder.  Mr.  Kipling's  mind 
became  filled  with  the  images  of  military  bluster  and 
the  principles  of  military  honor.  Scenes  that  would 
have  convulsed  the  soul  of  Milton  or  Byron  afforded 
him  the  material  for  casuistical  doggerel.  And  by  the 
strength  of  his  imagination  and  because  of  a  peculiar 
genius  for  popular  appeal  he  filled  the  world  with  the 
echoes  of  the  miusic  hall,  the  barracks  and  the  brothel. 
His  songs  brought  poetry  down  to  the  level  of  the  Xs 
prize  ring,  the  cock-pit  and  the  racing  stable.  He  be 
came  the  de  facto  laureate  of  England.  So  that  butch 
ery,  oppression,  and  what  hypocrites  call  destiny, 
acquired  a  glamour  that  thrilled  the  hearts  of  those 
who  would  have  been  horrified  at  these  things  in  their 
visible  forms.  At  last,  at  an  opportune  time,  he  sealed 
his  hold  upon  the  religious  world  by  an  anthropomor 
phic  poem  entitled  "Recessional,"  in  which  the  Diety 
is  made  to  do  duty  as  a  military  overseer  for  the 
armies  of  Great  Britain,  wherever  they  are  engaged  in 
planting  the  banner  of  empire.  In  brief,  Mr.  Kipling 
is  the  laureate  of  strenuosity,  and  has  done  as  much 
to  corrupt  the  tastes  and  the  manners  of  the  world  as 
any  man  who  has  lived  in  an  hundred  years.  Emperor 
William  approaches  Mr.  Roosevelt  on  many  more  sides 
than  does  Mr.  Kipling.  Emperor  William  is  also 
strenuous;  but  he  pretends  to  be  what  Mr.  Roosevelt 

27 


THEODORE  ROOSEVELT. 

desires  to  have  believed  of  himself,  namely,  that  he 
is  many-minded  and  triumphant  in  several  fields  of 
endeavor.  The  emperor  aspires  to  be  a  writer,  an  ora 
tor,  an  artist,  a  poet,  an  architect,  a  savant,  a  hunter, 
a  military  genius;  and  he  is  some  of  these  things  to 
a  degree  as  well  as  an  emperor.  All  of  these  things 
may  be  said  of  Mr.  Roosevelt,  besides  some  others 
along  the  same  line.  For  Mr.  Roosevelt  can  wrestle, 
box,  fence,  ride  and  shoot  as  well  as  write  histories 
and  biographies ;  make  speeches  and  win  battles.  He 
is  a  mixture  of  Caesar  and  Commodus;  and  the 
vaunted  resolution  with  which  he  took  up  the  Philip 
pine  problem  in  1901,  and  the  stringency  with  which 
it  was  carried  out,  shows  that  he  is  not  averse  to  the 
effusion  of  blood  when  it  is  drawn  in  a  patriotic  cause. 
Neither  was  Tiberius,  whose  causes  were  always  pa 
triotic  or  justifiable.  These  three  spirits,  then,  may 
be  said  either  together  or  successively  to  have  con 
trolled  the  surface  of  the  world's  movement  for  a 
time;  for  now  their  power  seems  to  be  on  the  wane. 
But  Mr.  Roosevelt  is  different  from  his  compeers  in 
the  point  that  he  had  a  period  of  idealism  in  the  early 
part  of  his  career  which  neither  Emperor  William 
nor  Mr.  Kipling,  so  far  as  known,  ever  had. 

But  first  as  to  his  strenuosity  it  seems  to 
be  a  reaction  from  physical  feebleness.  He  has 
accentuated  the  attributes  of  courage,  endurance 
and  physical  power  for  the  reason  that  they 
were  not  natural  to  him,  but  have  been  ac 
quired.  The  man  who  is  born  strong  is  not  more 
self-conscious  of  his  strength  than  the  man  who  is 
born  with  sound  limbs  and  faculties  is  self-conscious 

28 


THEODORE  ROOSEVELT. 

of  these.  But  the  man  who  is  born  weak  and  who  has 
acquired  strength  is  proud  of  his  achievement  and  is 
self-conscious  of  it.  Sedulous  self-development  has 
caused  Mr.  Roosevelt  to  emphasize  the  physical  life. 
Nothing  with  him  counts  for  so  much  as  power  of 
endurance,  the  audacity  to  encounter  danger,  physical 
contest,  the  animal  in  man  and  their  capacity  to 
greatly  propagate  themselves.  Ordinarily  these  feel 
ings  pass  away  with  the  period  of  adolescence,  when 
the  first  rush  of  blood  has  subsided  from  the  head.  But 
Mr.  Roosevelt  has  carried  them  over  into  his  mature 
years  and  exploits  them  as  peculiar  wonders  charac 
teristic  of  himself.  This  is  the  meaning  of  the  strenu 
ous  life.  Amidst  such  tumultuous  passions  the 
writing  of  books  is  a  pastime.  The  warfare  against 
civic  wrong  and  for  civic  righteousness  must  be  waged 
with  grim  determination,  with  set  teeth  and  scowling 
countenance.  But  at  all  events  the  courage  and  the 
strenuosity  with  which  the  attack  is  made  must  be 
emphasized  more  than  the  merit  of  the  onslaught  or 
the  righteousness  of  the  cause.  Mr.  Roosevelt's  ad 
vice  to  speak  softly  but  carry  a  big  stick,  his  admoni 
tions  to  avoid  ignoble  ease,  to  stand  for  civic 
righteousness,  to  back  our  words  with  deeds  and  to 
couple  Christian  principles  with  resolute  courage 
sound  hollow  and  puerile.  There  is  too  much  of 
cruelty  and  tyranny  in  his  self-vaunted  courage.  His 
pompous  poses,  his  spectacular  manner,  and  his  ex 
hibitions  of  power  on  all  occasions  suggest  the  strong 
little  boy  of  the  school  yard,  who,  by  a  fair  measure 
of  strength  and  a  large  measure  of  fortune,  is  able 

29 


THEODORE  ROOSEVELT. 

greatly  to  his  own  delight  to  cow  the  feelings  of  his 
associates. 

But  if  a  man  possess  courage  how  shall  he  use  it? 
If  he  possess  great  energy  of  mind  in  what  channels 
shall  he  direct  it?  What  are  courage  and  ability  of 
themselves?  Of  what  consequence  is  the  strenuous 
life  for  its  own  sake?  The  world  has  seen  its  share 
of  men  who  had  courage  on  the  wrong  side  and  who 
were  strenuous  in  behalf  of  the  strong  and  wicked. 
Mr.  Roosevelt's  civic  righteousness  consists  in  strain 
ing  at  gnats.  He  is  very  much  concerned  about  the 
vices  of  people  and  about  crimes  as  well,  if  they  hap 
pen  to  be  committed  by  those  with  whom  he  is 
socially  out  of  sympathy.  But  with  the  rarest  oppor 
tunities  for  giving  his  country  a  new  birth  of  right 
eousness  and  liberty,  that  has  ever  come  to  any  man, 
he  has  done  nothing.  He  has  not  justified  the  people 
of  America  in  conferring  their  highest  honor  upon 
him.  But  as  Aeschines  said,  when  he  debated  the  ques 
tion  whether  Demosthenes  should  be  crowned,  he  has 
left  his  country  to  be  judged  by  its  youth  because  of 
the  man  who  has  received  its  greatest  honor.  "When 
a  man  votes  against  what  is  noble  and  just,"  said 
Aeschines,  "and  then  comes  home  to  teach  his  son, 
the  boy  will  very  properly  say,  'Your  lesson  is  im 
pertinent  and  a  bore.'  "  Hence,  what  is  courage  with 
out  a  cause;  what  is  strenuosity  without  an  ideal? 

The  temptation  considered  symbolically  alone  is  the 
most  searching  analysis  of  every  man's  experience  in 
the  realm  of  literature.  The  Son  of  Man  was  an  hun 
gered  and  the  tempter  said  "If  thou  be  the  son  of  God 
command  that  these  stones  be  made  bread."  Again, 

30 


THEODORE  ROOSEVELT. 

the  Son  of  Man  was  tempted  to  use  his  power  for  a 
vain  and  foolish  purpose,  and  by  such  use  to  place 
himself  upon  the  level  of  mountebanks  and  magicians. 
Finally,  empire  over  the  world  was  offered  him,  if  he 
would  worship  the  principle  of  evil.  In  the  resist 
ance  of  these  temptations  is  symbolized  honorable 
poverty,  dignified  purpose  and  renunciation  of  polit 
ical  power  rather  than  to  sacrifice  those  principles 
without  which  political  power  is  a  curse. 

One  of  Mr.  Roosevelt's  apologists  has  said  that  he 
compromised  with  his  ideals  in  order  to  get  power  to 
carry  some  of  them  into  effect.  But  this  never  has 
and  never  can  be  done.  The  man  who  thus  sophis 
ticates  with  his  own  mind  has  surrendered  his  power. 
He  has  fallen  at  the  feet  of  evil  in  order  to  possess 
a  kingdom ;  and  he  leaves  behind  him  when  he  enters 
into  possession,  the  only  power  by  which  he  could 
serve  the  kingdom  or  glorify  himself.  If  Mr.  Roose 
velt's  pretensions  to  ideals  in  his  earlier  years  may  be 
considered  seriously  it  only  remains  to  say  that  in 
various  books  he  stood  against  the  flagrant  evil  of  a 
protective  tariff;  that  he  denounced  imperialism,  that 
is,  the  acquisition  of  distant  and  heterogeneous  terri 
tory  by  force;  and  that  he  never  lost  an  opportunity 
to  inveigh  against  the  spoils  system  in  the  government 
service.  When  he  capitulated  upon  these  principles 
to  get  office,  he  had  nothing  left  with  which  to  seri 
ously  employ  his  courage  or  his  strenuosity.  It  was 
a  long  step  from  the  advocacy  of  expansion  by  the 
addition  of  sovereign  and  contiguous  states  to  the 
advocacy  of  subjugating  a  whole  nation  at  the  farther 
side  of  the  globe.  Yet  when  Mr.  Roosevelt  parted 


THEODORE  ROOSEVELT. 

with  his  principles  he  did  not  abandon  his  intemperate 
hatreds.  "Cowardly  shrinking  from  duty,"  as  applied 
to  the  policy  expressed  in  the  democratic  platform  of 
1900  contains  a  good  deal  of  sound  and  fury,  but  it 
signified  nothing  unless  it  drowned  out  the  small  voice 
in  himself  that  appealed  to  his  own  utterances  in  favor 
of  liberty  in  his  biography  of  Thomas  H.  Benton. 
Hence  did  he  compromise  with  his  principles  in  order 
to  get  into  power  to  do  good?  When  his  country 
hesitated  before  taking  the  plunge  into  national  ani 
malism  he  was  present  to  denounce  those  as  cowards 
who  tried  to  restrain  it.  He  became  the  loudest  expo 
nent  of  swaggering  militarism.  He  has  given  repeated 
expression  to  that  vulgarity  which  arrayed  in  garish 
colors  sets  up  to  despise  the  day  of  high  thinking  and 
noble  simplicity.  The  strenuous  life  consists  in  hearty 
feeding,  mighty  hunting,  desperate  climbing,  and  daily 
exercise  upon  the  mat  or  with  the  gloves.  Yet  he  is 
the  cynosure  of  vast  numbers  of  the  wealth  and 
fashion  of  the  country,  who  find  in  him  a  proud  and 
distinguished  interpreter  of  the /cult  of  exuberant  ani 
malism.'  The  slaughter  of  the  ostrich,  the  rhinoceros 
and  the  elephant  in  the  Roman  amphitheater  with  the 
bow  and  arrow  held  by  the  skillful  hand  of  the  im 
perial  hunter  is  out-done  by  the  pursuit  of  bears  and 
mountain  lions  with  modern  weapons  before  an  audi 
ence  of  millions.  The  daily  press  with  its  pictorial 
facilities  has  increased  the  spectators  and  multiplied 
the  marvels.  Scattered  through  the  various  strata 
of  society  Mr.  Roosevelt  has  found  sincere  admirers.  A 
military  spirit,  which  slumbers  in  the  breast  of  the  man 
below  who  loves  to  fight  and  the  man  above  who  loves 

32 


THEODORE  ROOSEVELT. 

to  see  a  fight,  has  leaped  forward  to  claim  Mr.  Roose 
velt  as  something  typically  American.  Thus  he  is  not 
without  friends  in  any  of  the  classes  drawn  according 
to  the  common  standards.  His  election  to  the  vice- 
presidency  elated  an  exponent  of  the  culture  of  the 
land,  so  that  even  beneath  the  shades  of  classicism 
he  is  not  wholly  proscribed.  Churchmen,  who,  with 
a  vague  unrest,  are  ever  reaching  out  for  new  realms 
of  activity,  and  keener  realizations  of  power,  take  him 
as  the  possible  precursor  of  some  destiny  toward 
which  they  have  hitherto  drifted  unconsciously.  With 
his  friends  it  is  useless  to  point  out  that  he  has  dis 
carded  the  institutions  of  his  country  and  broken  its 
ideals.  For  principles  of  peace  and  good  will  toward 
all  nations  he  has  substituted  military  rivalry.  He  has 
transported  hither  the  spirit  of  doubt  which  obtains 
among  European  nations  whose  proximity  to  each 
other  and  whose  traditional  jealousies  have  kept  up  a 
wearisome  watchfulness. 

Many  things,  which  by  reason  of  what  Washing 
ton  called  our  peculiar  situation,  are  alien  to  us  he 
has  helped  to  cultivate  among  us.  One  hundred  years 
have  not  sufficed  to  make  these  growths  of  old  world 
conditions  indigenous  to  this  soil.  We  are  yet  what 
we  were  in  Washington's  day,  a  nation  set  apart  from 
the  quarrels  of  kings ;  and  it  is  strange  indeed  if  some 
dream  of  destiny  which  would  have  discredited  Louis 
Napoleon,  shall  carry  us  far  away  from  that  simple 
code  which  is  logically  evolved  from  our  natural  situ 
ation. 

Mr.  Roosevelt  well  illustrates  the  principle  that  the 
decay  of  liberty  corrupts  one  of  the  noblest  arts. 

33 


THEODORE  ROOSEVELT. 

What  can  account  for  his  speeches  in  which  the 
American  people  are  advised  to  carry  a  big  stick,  in 
which  policemen  are  praised  for  their  swift  running, 
and  in  which  mighty  valor,  mighty  deeds,  great  dar 
ing  and  such  subjects  are  the  changes  which  are 
rung?  Sober  people  listen  in  amazement  to  these 
singular  strains,  well  understanding  that  they  cannot 
help  but  vitiate  popular  sentiment  at  home  and  pro 
duce  anxiety  and  hatred  abroad.  A  man  who  carries 
a  stick  or  a  pistol  will  more  likely  be  attacked  than 
the  man  who  does  not  go  armed.  For  the  arming  of 
one's  self  is  the  result  of  a  feeling  of  hate  and  the 
very  fact  that  he  is  armed  makes  him  dangerous  to 
those  who  are  not.  The  impulse  of  self-preservation 
prompts  the  removal  of  the  danger.  These  things  are 
as  true  of  nations  as  of  nuen.  To  keep  the  country 
upon  the  edge  of  war  because  of  some  fancied  contin 
gency,  and  to  depart  into  a  path  of  danger  for  the 
sole  purpose  of  greatly  daring  and  bravely  facing 
whatever  peril  may  come,  involve  the  overthrow  of 
all  this  country  has  hitherto  stood  for,  and  that 
through  a  spirit  of  boyish  bravado.  Nothing  more 
absurd  has  ever  occurred  in  the  history  of  any  na 
tion.  To  speak  of  mere  form,  there  is  a  marked  rhet 
orical  difference  between  Mr.  McKinley's  apostrophic 
question  "who  will  haul  down  the  flag"  and  Mr. 
Roosevelt's  crude  declaration  that  "the  flag  will  stay 
put."  As  an  orator  Mr.  Roosevelt  has  nothing  to  say 
and  says  it  as  poorly  as  possible. 

Court  etiquette  at  the  White  House  is  only  a  reflex 
of  more  fundamental  changes.  The  transformation 
of  that  historic  building  into  a  palace;  the  ruthless 

34 


THEODORE  ROOSEVELT. 

removal  and  storage  of  cherished  pictures  and  furni 
ture;  the  galloping  of  cavalry  through  the  streets  of 
the  capital  attending  upon  officials  or  embassies;  the 
designation  of  Mr.  Roosevelt  as  "the  presence"  which 
is  now  done  in  the  reports  of  the  social  functions  of 
the  White  House;  a  rigid  system  of  caste;  a  policy 
of  militarism,  inquisition  and  espionage  in  the  execu 
tive  department  of  the  government  are  also  significant 
things  which  cannot  be  overlooked. 

It  goes  without  saying  that  Mr.  Roosevelt  has 
never  shown  any  regard  for  constitutional  liberty; 
and  that  he  seems  to  have  little  understanding  of  the 
real  forces  of  civilization.  Those  who  will  attend  to 
the  lesson  may  learn  that  nothing  can  ever  come  of 
observing  the  little  virtues  while  the  weightier  mat 
ters  of  the  law  are  neglected.  The  lack  of  great 
principles  and  those  firmly  adhered  to  can  never  be 
compensated  by  intentions,  however  good  or  by  pri 
vate  virtues  however  admirable.  Sanguine  spirits  com 
fort  themselves  with  the  thought  that  if  Mr.  Roose 
velt  is  given  power  on  his  own  account  that  he  will 
not  carry  out  another's  policy  but  will  consider  him 
self  free  to  pursue  one  of  his  own.  If  he  was  looking 
for  an  immortality  as  glorious  as  any  known  to  his 
tory  he  could  achieve  it  by  giving  this  country  a  new 
birth  of  freedom.  The  republic  is  groaning  under  the 
weight  of  sin.  Its  conscience  is  tormented  with  a 
sense  of  awful  guilt,  with  a  knowledge  of  duty  for 
saken  and  ideals  discarded  and  shattered.  Millions 
of  men  who  love  the  republic  and  who  took  no  part 
in  its  iniquities  look  forward  with  passionate  hearts 
to  a  return  of  liberty.  If  Mr.  Roosevelt  should  be  able 

35 


THEODORE  ROOSEVELT. 

to  withdraw  our  control  from  the  Philippines  and 
assist  these  people  in  establishing  a  republic  he  would 
justly  stand  for  all  times  as  the  most  colossal  figure 
of  the  twentieth  century.  Here  is  a  field  for  his  cour 
age  and  his  strenuosity.  Here  is  an  opportunity 
which  a  truly  wise  man  would  not  pass  over.  But  it 
is  not  likely  that  he  will  fulfill  any  such  expectations. 
He  abandoned  his  ideals  to  get  office.  He  will  re 
assure  the  master  forces  of  his  party  in  order  to  be 
elected  president.  He  will  go  into  office  with  the 
chains  which  are  the  price  of  moral  surrender.  He 
is  too  vain,  too  infatuated  with  the  sophistry  of  priv 
ilege  and  glory  to  do  differently  in  the  future  from 
what  he  has  done  in  the  past.  He  has  robed  the 
office  of  president,  and  the  government  itself,  so  far 
as  under  his  control,  in  the  splendor  and  pomp  of 
monarchy.  This  is  apparel  which  speaks  the  man.  As 
he  called  Jefferson  a  "shifty  doctrinaire/'  and  Polk  a 
man  of  "monumental  littleness"  he  cannot  complain 
if  history  shall  write  him  down  as  one  whose  inordi 
nate  egotism  and  prostituted  principles  endangered  for 
a  time  the  hopes  of  mankind. 


JOHN  MARSHALL. 

Among  the  signs  of  the  times  which  bode  ill  for 
the  purity  of  republican  principles  is  the  much- 
vaunted  plan  of  celebrating  the  memory  of  John  Mar 
shall.  This  analysis  of  the  movement  is  indisputably 
true — namely,  if  its  patrons  were  devoted  to  the  rights 
of  men  instead  of  the  powers  of  government,  if  they 
were  stirred  by  the  principles  of  liberty  instead  of  the 
glory  of  the  state  they  would  propose  to  celebrate  by 
proper  memorials  the  achievements  and  sacrifices  of 
some  one  of  the  many  men  who  pledged  life  and 
sacred  honor  in  the  cause  of  American  liberty  and 
who  sought  to  bequeath  it  to  posterity  when  it  was 
attained. 

Those  thinkers  who  place  the  state  on  a  higher 
plane  than  men  are  usually  engaged  in  defending  un 
equal  rights.  When  rights  are  unequal  the  state  must 
be  strong  enough  not  only  to  make  them  so,  but  to 
keep  them  so.  It  ought  to  be  a  plain  truth  to  every 
one  that  the  only  justification  for  government  is  the 
preservation  of  equal  rights.  Men  are  endowed  with 
the  love  of  liberty  and  with  an  intuitive  sense  of  its 
axiomatic  truth.  And  when  the  constitution  was 
adopted  its  climacteric  end  was  stated  in  the  preamble 
to  be  the  preservation  of  liberty  to  ourselves  and  our 
posterity.  But  in  proportion  as  the  government  be- 
comes  strong  men  become  weak.  In  proportion  as 

37 


JOHN   MARSHALL. 

the  functions  of  government  are  multiplied  individual 
liberty  is  decreased.  Therefore  as  we  must  have  both 
government  and  liberty  what  powers  shall  the  govern 
ment  have?  There  is  but  one  answer  to  this  ques 
tion.  When  the  government  is  strong  enough  to  pro 
tect  each  man  in  the  enjoyment  of  equal  freedom  it 
has  attained  the  full  measure  of  legitimate  power. 

One  of  the  envious  shadows  that  has  fallen  from 
the  black  cockade  of  federalism  is  the  forgery  of  his 
tory  against  those  who  believed  in  liberty,  and  who, 
although  favorable  to  the  creation  of  a  nation,  en 
deavored  to  preserve  individual  freedom.  Jefferson, 
who  understood  the  science  of  government  better 
than  any  American,  has  been  so  calumniated  by 
monarchial  writers  that  nothing  has  saved  the  purity 
of  his  fame  except  the  voluminous  documents  and  let 
ters  which  he  left  behind  him,  making  the  attempt 
to  belie  his  principles  impossible  to  those  who  can 
investigate  the  question  with  care.  And  yet  a  vulgar 
impression  exists  that  Jefferson  was  inimical  to  the 
constitution.  By  a  skillful  process  of  innuendo  and 
sophistication  his  principles  have  been  intermixed 
with  the  doctrines  of  Calhoun  and  the  attempt  has 
been  made  to  place  them  in  a  fostering  relation  to  an 
archy  and  rebellion.  By  a  like  process  Marshall  is 
made  to  stand  as  the  great  friend  of  government  and 
the  effectual  exponent  of  law  and  order.  The  minds 
of  the  American  people  have  been  greatly  abused  by 
these  fictions,  which  are  the  creation  of  those  mon 
archists  who,  as  the  miners  and  sappers  of  the  consti 
tution,  in  favor  of  themselves  have  thus  falsely  ap 
pealed  to  the  Anglo-Saxon  love  of  sound  government. 

38 


JOHN   MARSHALL. 

The  absurd  eulogium  which  is  habitually  passed 
upon  Marshall  is  that  he  made  a  nation  of  the  United 
States.  A  franker  avowal,  but  with  the  same  meaning, 
is  that  he  strengthened  the  government;  while  lat 
terly  the  whole  significance  of  these  utterances  is  un 
masked  in  the  bold  acclaim  that  he  was  the  first  man 
to  take  up  the  march  of  the  constitution.  He  is 
praised  as  having  written  implied  powers  in  the  con 
stitution,  and  history  has  been  manipulated  to  estab 
lish  a  sequence  between  his  decision  in  McCulloch 
vs.  Maryland  and  the  battle  of  Gettysburg.  But, 
while  a  certain  school  of  political  thought  has  insisted 
that  the  victory  at  Gettysburg  was  the  approval  of 
arms  of  that  decision  and  that  implied  powers  may  be 
written  into  the  constitution  whenever  desirable,  and 
that  even  the  constitution  may  be  disregarded  in  the 
interests  of  government,  they  should  not  forget  that 
the  battle  of  Bunker  hill  decided  that  there  shall  be 
neither  kings  nor  monarchists  anywhere  in  America. 

Then,  with  all  due  respect  to  the  private  character, 
public  services  and  known  abilities  of  John  Marshall, 
why  apotheosize  his  memory  at  this  time?  In  this 
year  the  declaration  of  independence  is  characterized 
as  a  revolutionary  pronunciamento  incapable  of  syl 
logistic  proof.  The  constitution  is  ignored.  A  presi 
dent  is  governing  millions  of  people  outside  of  the 
constitution,  admits  that  he  is  doing  so  and  says  that 
it  is  proper  to  do  so.  Is  it  not  an  additional  comment 
of  the  same  purport  upon  the  spirit  of  the  time  to 
flood  the  country  with  panegyrics  upon  the  great  ex 
positor  of  implied  powers?  If  these  things  find  war 
rant  in  the  principles  of  Jefferson,  Story,  Adams, 

39 


JOHN   MARSHALL. 

Madison,  Randolph  or  Paine  and  not  in  Marshall,  why 
not  celebrate  one  of  the  'former?  For,  rightfully  con 
sidered,  Marshall  occupies  a  mere  secondary  place 
among  the  great  men  of  this  country. 

Hamilton  possessed  a  more  daring  and  original 
genius,  but  a  cabinet  report  on  a  national  bank  lacks 
the  force  of  a  supreme  court  decision  finding  its  char 
ter  to  be  constitutional.  Madison  excelled  him  in 
learning,  but  Madison  was  in  favor  of  a  constitutional 
march  only  by  a  constitutional  amendment.  Frank 
lin's  mind  was  more  versatile,  but  Franklin,  though 
dissatisfied  with  the  monarchial  faults  of  the  constitu 
tion,  acquiesced  in  it  when  the  majority  favored  it  for 
the  good  it  contained  and  the  peace  of  the  country. 
Jefferson  towered  above  him  in  all  that  goes  to  consti 
tute  the  statesman,  humanity,  vast  scholarship,  deep 
insight  and  grasp  of  principles,  but  Jefferson  was  a 
friend  to  the  constitution,  not  as  those  who  became 
its  enemies  when  they  could  not  use  it.  Not  even 
Marshall's  warmest  admirers  claim  he  was  a  man  of 
more  than  mediocre  juridical  learning.  As  a  judge 
he  was  inferior  to  many  of  his  associates  in  scholar 
ship,  while  his  successor,  Taney,  was  a  more  brilliant 
example  of  judicial  genius. 

But  after  all  such  discriminations  as  these  how  does 
the  judicial  office,  however  capably  filled,  compare 
with  those  efforts  of  ampler  genius  which  uplift  and 
enlighten  the  race  of  men?  Marshall  possessed  that 
cast  of  mind  which  would  have  won  him  success  in 
Scottish  metaphysics  exemplified  by  the  writings  of 
Dugald  Stewart.  But  as  Taine  has  well  said  that 
the  English  language  has  known  no  metaphysician, 

40 


JOHN   MARSHALL. 

Marshall's  mental  cast  was  of  that  inferior  order 
which  gave  him  mere  ingenuity  in  sophisticating  legal 
questions  to  a  preconceived  idea.  His  habit  of  cover 
ing  the  whole  field  of  discussion  in  long  obiter  dicta 
when  the  case  turned  upon  a  point  of  jurisdiction  was 
not  only  disingenuous,  but  has  actually  corrupted  all 
federal  decisions  to  this  day  with  the  same  defect. 

In  Marbury  vs.  Madison,  where  the  sole  question 
was  whether  the  supreme  court  had  jurisdiction  of  the 
writ  of  mandamus  under  the  constitution  to  compel 
Madison  to  deliver  certain  commissions,  Marshall 
treated  the  whole  question,  finding  that  the  commis 
sions  were  valid,  although  never  delivered,  and  then 
decided  at  last  that  the  court  had  no  jurisdiction  to 
do  anything.  It  was  this  course  in  the  Dred-Scott 
case  in  which  the  court  discussed  every  political  and 
historical  aspect  of  slavery,  only  to  hold  that  Dred 
Scott  was  a  slave  and  could  not  sue  in  the  United 
States  courts,  that  rocked  the  republic  to  its  founda 
tions  and  caused  Lincoln  to  say  that  the  people  are 
masters  of  both  congress  and  courts,  not  to  overthrow 
the  constitution,  but  to  overthrow  those  who  pervert 
the  constitution. 

But  it  is  because  Marshall's  career  subserves  a  desire 
as  old  as  the  declaration  of  independence  that  his 
memory  is  nourished  to  the  neglect  of  many  great 
men  who  stood  opposed  to  his  principles.  From  docu 
ments  and  diaries,  from  historical  evidence  not  to  be 
doubted,  there  has  existed  in  this  country  from  the 
close  of  the  revolutionary  war  a  powerful  party  forti 
fied  by  intelligence,  respectability  and  wealth  and 
sleepless  in  its  efforts  to  monarchize  the  republic.  It 


JOHN   MAKSHALL. 

is  not  pretended  that  this  party  desired  a  king.    But 
a  king  is  not  necessary  to  monarchial  success. 

Where  the  elective  principle  is  wormed  out,  where 
the  superior  branch  of  the  legislature  is  independent 
of  the  people,  where  the  executive  is  independent  of 
the  people  and  the  judiciary  sits  above  impeachment, 
where  the  constitution,  whose  very  object  was  to  pre 
vent  by  its  limitations  a  perversion  of  the  republic, 
is  treated  with  contempt  or  amended  by  judicial  con 
struction  and  not  by  the  people,  as  it  provides,  and 
where  these  functionaries  of  government  legislate 
upon  the  theories  of  inequality  before  the  law,  in  that 
manner  building  up  a  powerful  aristocracy,  which 
uses  its  force  to  continue  these  policies,  there  the 
monarchial  principle  has  been  established.  It  was 
for  these  things  by  temperament,  by  conduct  and  by 
judicial  decision  that  Marshall  stood. 

If  the  declaration  of  independence  was  a  mere  revo 
lutionary  manifesto  then  it  only  accomplished  our 
emancipation  from  the  government  of  Great  Britain. 
But  if  it  was  a  statement  of  political  truths  applicable 
to  all  men  at  all  times  then  it  divorced  the  American 
people  forever  from  all  monarchial  principles.  It  be 
came  the  soul  of  the  constitution,  just  as  it  animated 
the  thought  of  Madison  and  the  great  leaders  of  lib 
erty  in  the  constitutional  convention.  But  the  pure 
intent  of  the  father  was  corrupted  by  the  illegitimate 
reasoning  of  Hamilton,  just  as  amid  the  swell  of  a 
triumphant  chorus  one  discordant  blast  may  destroy 
the  entire  harmony.  And  when  he  had  once  intro 
duced  the  voice  of  monarchy  into  the  theme  the  best 
that  could  be  done  with  the  unfitting  tone  was  to  tem- 

42 


JOHN   MARSHALL. 

per  it  as  much  as  possible  to  the  main  key.  The  ab 
surd  electoral  college  was  one  of  the  results  of  this 
endeavor.  The  venerable  Franklin  just  before  sign 
ing  the  constitution  sadly  declared  that  it  was  per 
haps  the  best  constitution  that  could  be  evolved  from 
the  materials  at  hand  and  that  the  government  could 
only,  like  all  others  before  it,  end  in  despotism. 

When  it  is  remembered  that  Hamilton  frankly 
avowed  monarchial  principles  and  that  in  numerous 
letters  and  declarations  he  purposed  under  the  guise 
of  implied  powers  to  create  a  government  different 
from  that  created  by  the  constitution,  and  when  it  is 
remembered  in  this  connection  that  Marshall  as  a 
judge  completed  his  work  by  validating  Hamiltonian 
legislation,  the  component  parts  of  a  scheme  to  mon- 
archize  the  republic  are  brought  to  view.  It  was  by 
the  funded  debt,  the  tariff,  the  United  States  bank 
and  internal  improvements  that  the  constitution  was 
to  be  destroyed  in  its  own  name.  For  when  it  was 
objected  that  the  constitution  should  not  have  a  per 
manent  debt  Hamilton  illogically  replied  that  the  peo 
ple  should  not  repudiate  the  price  of  liberty.  When  it 
was  urged  that  the  constitution  did  not  warrant  the 
exaction  of  toll  for  the  benefit  of  merchants  Hamilton 
with  accustomed  sophistry  replied  that  American 
labor  must  be  protected.  When  the  United  States 
bank  was  opposed  as  unconstitutional  Hamilton 
pointed  to  the  war  clause  in  the  constitution  and  ap 
pealed  to  the  war  spirit  of  the  people.  When  internal 
improvements  were  resisted  on  the  ground  that  they 
were  unconstitutional  and  furnished  the  means  of  gen 
eral  corruption  Hamilton  asked  if  the  people  did  not 

43 


JOHN   MARSHALL. 

desire  to  foster  domestic  commerce  by  building  pass 
able  highways  through  the  country.  Thus  while 
arguing  beside  the  point  with  the  people  he  conveyed 
to  his  followers  the  real  purpose  of  these  things — 
namely,  the  march  of  the  constitution  toward  an  aris 
tocracy. 

It  is  impossible  within  any  reasonable  space  to 
picture  the  sufferings  of  men  through  the  long  ages 
at  the  hands  of  tyrants  or  to  show  that  beyond  the 
boundaries  of  a  republic  lies  the  domain  of  monarchy 
where  the  sun  of  truth  does  not  shine,  because  mon 
archy  will  not  suffer  itself  to  be  explored,  knowing 
that  it  is  defended  by  the  monsters  of  force  and  fraud. 
Language,  therefore,  is  weak  when  an  attempt  is 
made  to  characterize  the  Hamiltonian  plot  against 
the  great  republic  which  came  into  being  after  cen 
turies  of  struggle,  endowed  with  the  pacific  wisdom 
of  the  greatest  men  of  Greece  and  Rome  and  Eng 
land.  Who  can  sufficiently  condemn  any  plot  de 
signed  to  turn  the  republic  back  into  the  hateful  paths 
of  despotism?  Centuries  hence,  when  perhaps  the 
democratic  principles  shall  have  been  put  beyond 
assault  by  bloody  revolutions  and  this  undergrowth 
of  dialectics  concerning  implied  powers  shall  have 
been  burned  up  in  the  fierce  heat  of  outraged  human 
ity,  men  will  wonder  at  the  darkness  with  which  the 
evil  genius  of  Hamilton  and  Marshall  obscured  the 
light  of  heaven. 

It  is  conceded  by  Marshall's  warmest  admirers  that 
his  reasoning  in  McCulloch  vs.  Maryland  was  adopted 
from  Hamilton's  report  on  a  national  bank.  The  lat 
ter  is  at  once  the  most  patent  as  well  as  the  most  artful 

44 


JOHN   MARSHALL. 

piece  of  unreason  in  the  language.  Most  patent  be 
cause  no  man  of  candid  sense  can  fail  to  perceive  its 
fallacies.  It  is  most  artful  because  almost  impossible 
of  disproof  to  any  man  whose  intuitive  sense  of  logic 
does  not  grasp  its  refutation  in  its  own  terms.  It  is 
comparable  to  nothing  in  any  language  more  than  to 
the  puerile  sophistry  of  Plato.  Yet  history  has  been 
fabricated  and  criticisms  written  to  exalt  this  sinister 
document.  It  is  supposed  to  add  to  the  celebrity  of 
Marshall  that  he  followed  its  irrational  windings  in 
adjudging  the  charter  of  the  United  States  bank  to 
be  constitutional. 

As  the  charter  violated  the  laws  of  mortmain  and 
alienage,  of  descent  and  distribution,  there  was  in  these 
things  sufficient  reason  for  invalidating  it.  As  it  cre 
ated  a  monopoly  and  therefore  invaded  the  principles 
of  liberty,  the  bank  had  no  place  in  the  republic.  As 
it  was  invested  with  powers  paramount  to  the  states, 
it  trespassed  upon  that  sovereignty  of  the  states  which 
is  limited  only  by  the  sovereignty  of  the  general  gov 
ernment.  As  the  bank  was  an  economic  heresy,  it  was 
not  a  proper  means  of  carrying  into  effect  any  enum 
erated  power  of  congress.  As  the  constitutional  con 
vention  had  voted  down  a  proposition  to  authorize 
congress  to  open  canals  and  to  incorporate  companies, 
because  congress  would  then  be  empowered  to  incor 
porate  a  bank,  Hamilton's  report  asserted  an  implied 
power  in  congress  to  do  that  which  the  convention 
had  expressly  refused  to  confer  upon  congress. 

Therefore,  as  the  constitutional  debates  might  be 
ignored  upon  the  principle  that  all  intents  became 
merged  in  the  constitution,  although  Marshall  himself 

45 


JOHN   MARSHALL. 

frequently  quoted  the  Federalist  in  deciding  ques 
tions,  still,  as  the  constitution  was  silent  on  the  power 
to  incorporate  a  bank,  a  trading  company  or  any  other 
corporation,  it  became  incumbent  upon  Hamilton  to 
establish  a  relation  between  a  bank  and  one  of  the 
enumerated  powers  as  being  "necessary  and  proper" 
to  effectuate  it.  Here  refinement  reached  the  level  of 
medieval  metaphysics.  Hamilton  asserted  that  "nec 
essary"  meant  needful,  requisite,  incidental,  useful  or 
conducive  to.  On  the  other  hand,  Jefferson  contended 
that  necessary  means  constituted  those  "without 
which  the  grant  of  power  would  be  nugatory." 

It  is  apparent  that  many  things  might  be  useful  to 
the  execution  of  some  enumerated  power  or  in  some 
manner  incidental  to  its  execution  without  bearing 
that  legitimate  relation  to  it  which  in  its  absence 
would  render  the  enumerated  power  incapable  of  exe 
cution.  Then  Hamilton  sought  to  bring  the  creation 
of  the  bank  within  the  implied  powers  of  congress. 
He  argued  that  it  related  to  the  collection  of  taxes, 
because  it  increased  the  circulating  medium,  and, 
therefore,  facilitated  the  payment  of  taxes.  But  as 
congress  is  only  empowered  to  lay  taxes  and  pay 
debts,  the  bill  to  create  the  bank  laid  no  tax  and  paid 
no  debt.  He  argued  that  it  related  to  the  power  of 
borrowing  money.  But  the  bill  neither  borrowed 
money  nor  provided  for  borrowing  money.  He  argued 
that  it  related  to  the  regulation  of  commerce  between 
the  several  states.  But  the  bill  did  not  regulate  com 
merce,  but  only  created  a  subject  of  commerce  in  its 
paper  money,  just  as  any  producer  of  wealth  creates 
subjects  of  commerce,  but  does  not  regulate  them  by 

46 


JOHN   MARSHALL. 

such  production.  Instances  of  the  argument  need  not 
further  be  multiplied  to  demonstrate  the  fallacy  of 
Hamilton's  report. 

Hamilton  then  entertained  the  avowed  project  of 
monarchizing  the  republic  and  warded  off  attacks 
upon  him  by  the  demagogic  plea  that  the  sovereignty 
of  the  nation  must  not  be  crippled.  No  one  ever  enter 
tained  that  purpose.  But  the  constitution  was  adopted 
by  the  fathers  and  defended  by  Jefferson  for  the  pur 
pose  of  crippling  the  imperialistic  attempts  of  that 
body  of  thinkers  who  believed  in  monarchial  govern 
ment. 

Among  candid  men  it  can  never  be  debatable  that 
in  this  government,  conceived  in  liberty  and  dedicated 
to  the  proposition  that  all  men  are  created  equal,  its 
constitution  impliedly  warrants  the  erection  of  a  mo 
nopoly.  Nor  can  it  be  debatable  that  a  government 
so  founded  by  force  of  its  constitution  permits  any 
legislation  as  necessary  to  carry  into  effect  some  ex 
press  power  which  in  its  intent  and  practice  consti 
tutes  pure  aggression.  It  was  never  intended  that 
implied  powers  should  be  written  into  the  constitution 
in  favor  of  the  monarchial  principle  of  special  priv 
ilege  and  that  it  should  be  strictly  construed  against 
the  republican  principle  of  liberty. 

Marshall  well  knew  that  the  United  States  bank, 
by  virtue  of  the  special  privileges  granted  it,  abso 
lutely  dominated  the  financial  system  of  the  land,  and 
that  it  had  the  power  to  destroy  every  moneyed  insti 
tution  in  the  country  and  to  reduce  to  beggary  almost 
countless  thousands  of  people.  How  could  legislation 
creating  such  an  institution  be  held  as  constitutional 

47 


JOHN   MARSHALL. 

when  not  expressly  provided  for  in  the  constituti  m 
and  asserted  to  be  impliedly  provided  for  in  a  piece  of 
far-fetched  and  fantastic  unreason?  In  the  absence 
of  Marshall's  positive  declarations,  his  bank  decision 
is  sufficient  to  stamp  him  as  an  enemy  of  republican 
principles. 

Upon  this  foundation  the  fame  of  Marshall  rests. 
He  was  not  a  friend  to  the  constitution  or  to  repub 
lican  institutions.  And  as  showing  that  his  decision  in 
the  bank  case  was  the  result  of  a  temperamental  lean 
ing  in  favor  of  a  monarchial  system  and  that  it  did 
not  result  from  the  logic  of  discussion  the  opinion  of 
Allan  B.  Magruder,  Marshall's  panegyrist,  is  in  point. 
"He,"  wrote  Magruder,  "made  federalist  law  in  nine 
cases  out  of  ten  and  made  it  in  strong,  shapely  fashion. 
A  republican  judge,  however,  would  have  brought 
about  a  very  different  result,  which  as  we  believe 
would  have  been  vastly  less  serviceable  to  the  people, 
but  of  which  the  workmanship  in  a  strictly  profes 
sional  and  technical  view  might  have  been  equally 
correct." 

A  vulgar  view  of  the  matter  created  by  federalistic 
sophistry  is  that  Marshall's  decisions  somehow  armed 
the  northern  arms  to  deal  the  death  blow  to  anarchy, 
Calhounism  and  strict  constructionism,  supposed  to 
have  been  championed  by  Jefferson.  Herein  these 
irreconcilable  things  have  been  falsely  confused.  The 
civil  war  decided  nothing  new  whatever.  It  merely 
destroyed  by  force  the  doctrines  of  Calhoun  that  the 
constitution  itself  provides  by  implication  for  the 
peaceable  dissolution  of  the  union.  But  it  did  not 
decide  that  the  constitution  by  virtue  of  its  implied 

48 


JOHN   MARSHALL. 

powers  provides  for  the  erection  of  monarchy  upon  its 
ruins.  And  yet  how  have  the  Hamiltonians  manipu 
lated  the  effects  of  the  war  and  distorted  its  meaning 
if  not  to  cry  out  that  all  constitutional  questions  were 
laid  at  rest  by  the  war?  They  declare  that  strict  con 
struction,  a  mere  federalistic  fiction,  was  shot  to  death 
at  Gettysburg,  as  if  that  gave  them  the  warrant  to 
write  such  implied  powers  into  the  riddled  constitution 
as  they  desire,  or  even  to  ignore  it  for  the  purpose  of 
throwing  off  its  crippling  limitations  in  order  that  the 
United  States  may  be  as  powerful  as  the  monarchies 
of  the  old  world. 

Thus  have  Hamiltonism  and  Marshallism  conducted 
the  republic  to  imperialism.  However  pure  Marshall's 
private  character  may  have'  been,  however  exalted  his 
abilities  or  however  patriotic  his  course  in  the  revolu 
tionary  war  his  career  stands  for  evil  in  the  republic 
if  his  influence  leads  to  the  overthrow  of  the  constitu 
tion  or  can  be  employed  to  that  end.  It  was  not  con 
fidence  in  man  but  in  distrust  of  human  nature,  that  the 
constitution  was  adopted  reserving  to  the  states  or  the 
people  all  powers  not  delegated  to  the  United  States. 
"To  take  a  single  step  beyond  the  boundaries  thus  spe 
cially  drawn  around  the  powers  of  congress  is  to  take 
possession  of  a  boundless  field  of  power  no  longer  sus 
ceptible  of  any  definition."  The  doctrine  of  implied 
powers  as  construed  by  Marshall  is  a  flat  contradiction 
of  the  very  intent  of  the  constitution  and  thus  turns 
into  futility  the  declaration  of  independence.  The 
blood  of  those  who  fell  at  Lexington  and  Concord  cries 
out  against  their  evil  activity. 

To  what  beginning  do  the  American  people  look  for 

49 


JOHN   MARSHALL. 

their  government?  To  the  exalted  thought  of  revolu 
tionary  demigods  and  to  the  consent  of  that  bold  peo 
ple  who  adopted  a  written  constitution  by  popular 
voice.  To  what  beginning  do  the  English  people 
look  for  their  government?  To  the  force  of  William 
the  Conqueror,  who  subdued  and  despoiled  them  by 
the  sword  and  ruled  them  in  contempt  of  their  choice. 
Why  confuse  these  two  systems?  Why  exalt  those 
who  avowedly  sought  to  pervert  the  republic  and  cast 
the  shadow  of  unmerited  shame  upon  those  who  found 
ed  the  only  republic  that  ever  existed?  The  experi 
ment  is  in  the  hands  of  the  American  people.  They 
may  destroy  the  republic,  but  they  cannot  obliterate 
the  principles  of  Jefferson  and  the  declaration  of  inde 
pendence.  If  in  the  evolution  of  the  world's  history 
this  republic  was  not  destined  to  be  perpetuated  the 
truths  upon  which  it  was  founded  will  nevertheless  sur 
vive  all  the  shocks  of  time  and  will  become  the  corner 
stones  of  some  perfect  fabric  ages  hence,  so  that  a 
government  of  the  people  shall  indeed  not  perish  from 
the  earth. 


THOMAS  JEFFERSON. 

Jefferson's  birthday  in  these  days  is  not  generally 
celebrated  at  the  banquet  board.  His  character  lacked 
the  militant  element  which  lends  itself  to  the  pagan- 
istic  rites  of  the  feast,  the  toast,  and  the  high-sound 
ing  eulogium.  He  won  no  battles,  he  conquered  no 
visible  foe,  he  captured  no  concrete  strongholds.  His 
life  was  intellectual  and  peaceful.  His  mind  was  en 
gaged  with  the  sciences,  with  historical  studies,  with 
the  practical  arts,  with  music,  with  polite  literature 
and  with  a  new  form  of  statesmanship.  He  had  sworn 
eternal  hostility  against  every  form  of  tyranny  over 
the  mind  of  man.  The  warfare  which  he  waged  was 
in  the  domain  of  mind.  It  was  against  injustice,  spe 
cial  privilege,  ignorance  and  bigotry.  These  were  the 
foes  whose  citadels  he  reduced  and  whose  armies  he 
subdued.  Do  such  victories  appeal  to  the  heavy  imag 
ination  of  commercialism?  Moreover,  Jefferson  is  me 
morialized  on  the  4th  of  July,  which  as  a  national  holi 
day  really  engages  itself  with  honoring  the  work  of 
this  man.  Who  else  in  American  history  has  such  uni 
versal  tribute  paid  him? 

Latterly  also  the  root  and  branch  of  despotism  have 
flourished  to  some  extent  in  this  land  and  a  systematic 
effort  is  apparent  to  find  some  other  character  pro 
phetic  of  the  day  and  sympathetic  with  its  tempo 
rary  movement.  Jefferson  will  not  suffer  to  any  great 


THOMAS  JEFFERSON. 

extent  by  this  conspiracy.  He  will  come  into  his  own 
in  due  season.  He  is  the  genius  of  this  republic  and 
of  the  republican  system  and  his  course  was  not  ac 
complished  to  be  supplanted  by  some  secondary  in 
fluence.  The  real  logic  of  history  is  not  that  way. 
He  is  to  statesmanship  what  Luther  was  to  the  ref 
ormation  and  Newton  to  science.  And  he  shares  with 
them  to  some  extent  their  disadvantage  of  after-dinner 
talk.  But,  on  the  other  hand,  who  else  furnishes  a 
better  theme  for  oratory  as  that  art  should  be  prac 
ticed?  Here  was  a  hundred  handed  man.  He  was 
a  great  lawyer,  he  was  a  scientist,  a  musician,  a  scholar, 
an  inventor,  a  writer  and  a  statesman.  Like  Goethe, 
he  studied  everything  and  tried  everything.  He  was 
mediocre  in  nothing  that  he  attempted.  He  had  ob 
served  the  proprieties  of  life.  Scandal  never  touched 
his  name.  Party  rancor  failed  to  impeach  his  motives. 
He  was  just.  He  was  generous.  He  was  devoted 
to  liberty  and  truth.  There  was  no  humbug  in  him. 
He  developed  no  mysticism  of  a  flag  with  which  to 
enslave  the  minds  of  his  fellows.  He  put  government 
in  the  sunlight,  where  its  workings  could  be  seen. 
He  was  therefore  hated  by  those  who  wanted  to  per 
petuate  the  superstitions  of  the  past  that  the  admin 
istration  of  public  affairs  is  a  mysterious  agency  not  to 
be  Analyzed  but  to  be  feared  and  worshiped.  His 
comprehensive  mind  grasped  the  spirit  of  the  day.  If 
he  discovered  no  political  principles  he  stated  those 
already  known  in  such  language  that  they  have  become 
the  very  elements  of  thought.  He  is  the  most  con 
spicuous  success  in  history  in  the  application  of  great 
principles  to  practical  affairs.  He  carved  out  the 

52 


THOMAS  JEFFERSON. 

sphere  of  the  state.  He  defined  the  rights  of  the  citi 
zen  in  the  state.  He  furnished  every  president  after 
him,  including  Lincoln,  with  a  policy  and  a  reason 
for  the  policy.  There  is  no  system  in  opposition  to 
his  which  is  avowed  and  denied.  Even  imperialism 
is  justified  under  the  pretense  of  giving  the  Filipinos 
liberty.  What  greater  tribute  can  his  enemies  pay  him 
when  they  fear  to  do  evil,  except  in  the  name  of  Jef 
ferson?  They  admit  his  power  in  the  land  when  they 
call  the  Philippine  aggression  the  same  thing  as  the 
Louisiana  purchase. 

What  man  at  33  years  of  age  has  contributed  to 
civilization  in  any  form  such  a  motive  power  as  the 
declaration  of  independence?  This  was  an  inspiration 
al  stroke  which  fitted  into  the  time;  in  fact,  we  can 
not  conceive  of  the  world  without  it.  It  interprets  the 
new  epoch.  It  is  a  charter  of  liberty  beside  which 
magna  charta  and  the  instrument  of  government  are 
as  dull  as  a  declaration  for  slander.  Who  else  had  so 
elevated  his  mind  and  humanized  his  heart  that  he 
could  have  written  it?  It  stated  fundamental  truths, 
but  in  such  language  that  they  armed  revolution,  fired 
the  conscience  of  the  people  and  raised  the  hopes  of 
a  discouraged  land.  It  contains  within  itself  all  the 
aspiration,  all  the  justice  and  all  the  beneficence  of 
the  human  heart.  It  is  intelligible,  compact,  incap 
able  of  being  misunderstood  or  sophisticated.  It 
means  the  same  thing  to  all  men.  It  is  all-inclusive.  It 
is  a  perfect  repository  of  political  truth  and  philosophy. 
It  defies  the  insolence  of  monarchy  and  grinds  to  pow 
der  the  absurd  pretension  of  divine  right.  It  takes 
the  angry  assaults  of  selfish  expediency  and  special 

S3 


THOMAS   JEFFERSON. 

privilege  without  hurt.  It  is  unchangeable  in  its  ap 
peal  and  is  heard  with  rapture  by  millions  once  a  year 
in  every  city  and  hamlet  in  the  land.  It  challenges 
refutation  and  where  proscribed  is  not  answered.  It 
is  feared  by  those  whose  power  rests  upon  fraud  or 
force.  It  conquers,  but  does  not  wound;  it  leaves  no 
sting  after  the  mind  has  been  subdued ;  it  wins  its  way 
through  a  spirit  of  amity  and  reason.  Such  is  the 
declaration  of  independence,  defeated  on  many  battle 
fields  since  it  was  promulgated.  But  it  has  never  been 
overthrown  in  the  forum,  in  the  realm  of  reason.  All 
victories  of  force  are  barren  which  are  not  crowned  by 
truth  and  justice.  It  were  better  that  they  were  never 
won. 

The  civil  war  brought  to  the  front  a  form  of  man 
not  intended  to  flourish  in  this  country.  He  is  that 
banal  demagogue  who  wishes  to  clothe  in  the  sacred- 
ness  of  government  whatever  a  paramount  political 
party  chooses  to  do.  He  takes  occasion  to  denounce 
protest  against  usurpation  as  rebellion  and  treason. 
He  conjures  with  the  words  "sovereignty"  and  "the 
flag."  At  the  banquet  board,  where  his  resounding 
hypocrisies  are  launched,  he  starts  with  Thomas  Jef 
ferson  as  the  author  of  secession  and  the  proximate 
cause  of  the  civil  war.  His  peroration  invests  with 
the  halo  of  divine  dispensation  the  Philippine  despot 
ism.  The  critics  of  that  despotism  are  branded  as 
traitors.  They  are  held  responsible  for  the  death  of 
our  boys  in  the  islands.  The  honor  of  the  army  en 
gages  his  swelling  wrath  and  he  sits  down  amidst 
the  applause  of  those  who  have  more  respect  for  the 
rules  of  golf  than  they  have  for  the  constitution  of 

54 


THOMAS   JEFFERSON. 

the  United  States.  These  are  the  scenes  now  enacted 
in  a  republic  where,  properly  speaking,  there  is  no 
such  thing  as  the  honor  of  the  army  or  the  act  of  any 
administration,  even  if  crystallized  into  law,  which 
forbids  condemnation,  oral  and  written,  and  proper 
effort  to  restore  the  government  to  liberty  and  law. 
There  are  many  millions  of  men  in  this  country  who 
care  nothing  about  the  army  and  who  are  perfectly 
sure  that  it  can  have  no  honor  while  it  is  engaged  in 
subjugation.  They  will  not  defer  in  their  opinions  to 
those  who  profit  by  that  subjugation,  and  who  would 
wreck  the  country  before  they  would  part  with  their 
anticonstitutional  protective  tariff.  If  what  they  say 
of  Jefferson  is  true,  how  shall  these  self-appointed  pa 
triots  complain?  Who  will  explain  the  difference  be 
tween  breaking  up  the  union  by  secession  and  destroy 
ing  the  union  by  annihilating  the  organic  law  which 
created  the  union  and  holds  it  together? 

Jefferson  in  the  Kentucky  resolutions,  in  which  the 
seeds  of  secession  were  said  to  be,  attacked  the  pal 
pable  infractions  of  the  constitution  made  by  the  tariff 
laws,  the  United  States  bank  act  and  the  alien  and  sedi 
tion  acts.  The  resolutions  ^were  particularly  called  out 
by  the  alien  and  sedition  acts.  And  a  question  as  old  as 
government  and  not  yet  settled  arose  by  their  passage, 
namely,  Must  people  submit  to  tyranny  to  escape  the 
charge  of  treason  preferred  by  the  temporary  admin 
isters  of  the  government?  Human  nature  will  take 
care  of  this  problem.  Men  are  not  so  cowardly  or 
so  weak  that  they  will  part  with  their  liberties  in  or 
der  to  earn  the  commendation  of  being  loyal.  The 
Kentucky  resolutions  were  the  prompt  reaction  against 

55 


THOMAS   JEFFERSON. 

the  studied  attempts  of  the  anticonstitutionalists  to 
destroy  the  republic,  but  they  do  not  advocate  seces 
sion.  They  do  not  go  as  far  as  the  enemies  of  Jeffer 
son  wish  they  did.  Jefferson  was  not  a  secessionist. 
His  letters  to  John  Taylor,  Richard  Rush  and  Elbridge 
Gary  belie  the  charge  that  he  advocated  secession. 
The  argument  which  Lincoln  used  with  great  effect, 
that  secession  would  haunt  secession  and  ultimately 
break  up  any  group  of  seceded  states,  was  Jefferson's. 
He  applied  it  to  the  case  of  New  England,  which  con 
templated  secession  on  account  of  the  war  of  1812. 

It  was  at  a  dinner  given  in  honor  of  Jefferson's 
birthday,  April  13,  1830,  that  his  name  was  first  coupled 
with  secession  and  that  in  a  vague  and  somewhat 
subtle  form.  For  President  Jackson  on  that  occasion 
responded  to  the  toast  "Our  Federal  Union:  It  Must 
Be  Preserved."  This  would  have  settled  the  charac 
ter  of  the  dinner  except  for  the  toast  of  Mr.  Calhoun, 
who  said:  "The  union,  next  to  our  liberty  the  most 
dear;  may  we  all  remember  that  it  can  only  be  pre 
served  by  respecting  the  rights  of  the  states  and  dis 
tributing  equally  the  benefits  and  burthens  of  the 
union/'  These  remarks  were  coupled  with  the  cir 
cumstances  of  the  day  in  the  south  looking  toward  dis 
union  which  served  to  identify  Jefferson's  name  with 
the  doctrine  of  the  right  of  a  state  to  withdraw  from 
the  union. 

But  the  Kentucky  resolutions  advocated  nullifica 
tion,  not  secession.  They  assert  the  right  of  a  state 
to  stay  in  the  union  and  nullify  a  law  of  the  general 
government.  "Where  powers  are  assumed  which  have 
not  been  delegated  a  nullification  is  the  rightful  rem- 

56 


THOMAS  JEFFERSON. 

edy."  This  is  the  language  of  the  resolutions.  The 
word  secession  nowhere  appears  in  them.  The  right 
to  nullify  is  based  upon  the  assumption  that  an  un 
constitutional  law  is  null  and  void  and  no  law.  That 
an  unconstitutional  law  is  no  law  is  the  judgment  of 
the  supreme  court  to  this  day.  That  court  holds  now 
that  such  a  law  may  be  disregarded  by  everyone.  If 
so,  a  state  could  disregard  it.  But  the  resolutions  go 
beyond  this  doctrine  in  declaring  "that  the  government 
created  by  this  compact  was  not  made  the  exclusive 
or  final  judge  of  the  extent  of  the  powers  delegated, 
since  that  would  have  made  its  discretion  and  not  the 
constitution  the  measure  of  its  powers." 

Now  it  may  well  be  said  that  for  the  general  gov 
ernment  to  legislate  and  the  states  to  nullify  the  leg 
islation  a  hazardous  conflict  might  be  produced,  and 
therefore  the  power  to  decide  ought  to  be  somewhere. 
But  in  fact,  as  a  theoretical  question  of  constitutional 
law,  where  is  the  power?  The  necessity  and  the  fact 
are  different  things.  And  if  the  general  government 
may  legislate  as  it  thinks  proper  and  also  decide  upon 
the  validity  of  the  legislation  on  the  ground  that  the 
power  must  be  somewhere  and  that  it  cannot  be  in 
trusted  to  the  states,  the  states  may  likewise,  theo 
retically,  reply  that  the  power  must  be  somewhere,  but 
cannot  be  with  the  general  government  because  they 
thereby  become  subject  to  its  discretion.  This  prob 
lem  is  not  yet  settled.  It  will  never  take  the  form  of 
nullification  again,  and  it  should  not.  But  we  may 
be  led  to  rmodify  our  constitution  according  to  the 
Swiss  constitution  under  which  the  court  cannot  in 
validate  legislation.  We  may  even  revert  to  the  prin- 

57 


THOMAS   JEFFERSON. 

ciple  of  the  English  constitution  under  which  any  law 
is  constitutional  that  parliament  enacts.  Late  repub 
lican  tendencies  which  make  our  constitution  a  limita 
tion  upon  power  instead  of  a  grant  of  power  lead  in 
evitably  to  this  end.  When  congress  becomes  the 
judge  of  its  constitutional  energy  an  enlightened  peo 
ple  will  hold  the  balance  of  power  at  the  polls. 

But  the  condemnation  of  Jefferson  for  his  theories 
of  the  nature  of  the  republic  is  too  particular.  The 
charge  that  he  caused  the  civil  war  is  a  gross  absurdity 
traceable  to  the  fumes  of  wine.  That  the  states  are 
sovereign,  that  the  constitution  is  a  compact,  that  the 
states  may  hold  unconstitutional  legislation  to  be  void 
and  may  adopt  such  measures  as  they  think'  best  to 
protect  themselves  against  it  are  propositions  which 
Jefferson  held  in  common  with  the  most  eminent  men 
of  his  time  and  they  were  shared  in  by  many  distin 
guished  statesmen  since  his  day. 

Hamilton  himself,  by  fair  inference,  subscribed  to 
the  right  of  secession  as  early  as  1790,  eight  years  be 
fore  the  Kentucky  resolutions  were  published.  Madi 
son,  the  father  of  the  constitution,  was  at  one  with 
Jefferson  on  the  resolutions.  As  early  as  1803  the 
state  of  Massachusetts  protested  against  the  annexa 
tion  of  Louisiana  and  declared  that  "it  formed  a  new 
confederacy,  to  which  the  states  united  by  the  former 
compact  are  not  bound  to  adhere ;"  and  as  late  as  1844 
the  same  state  resolved  that  the  acquisition  of  Texas 
"would  have  no  binding  force  on  the  people  of  Massa 
chusetts."  In  1814  the  New  England  states  in  the 
well-known  Hartford  convention  declared  that  infrac 
tions  of  the  constitution  "affecting  the  sovereignty  of 

58 


THOMAS  JEFFERSON. 

a  state  and  liberties  of  the  people"  requires  of  the  "state 
to  interpose  its  authority  for  their  protection  in  the 
manner  best  calculated  to  secure  that  end"  and  "states 
which  have  no  common  umpire  must  be  their  own 
judges  and  execute  their  own  designs."  This  is  in 
part  the  very  language  and  in  entirety  the  substance 
of  the  Kentucky  resolutions.  The  federalist  govern 
ors  and  legislatures  of  the  New  England  states  shrank 
in  horror  from  these  resolutions  in  1798,  but  in  1814, 
when  the  embargo  affected  the  commercial  interests  of 
the  New  England  states,  as  the  alien  and  sedition  laws 
threatened  the  liberties  of  the  whole  people  without  re 
gard  to  locality,  they  faced  about  and  adopted  the  very 
blasphemy  at  which  they  had  held  up  their  hands  so 
little  a  time  before. 

In  1851,  after  Mr.  Webster  had  sifted  these  questions 
with  Hayne  and  Calhoun,  he  said :  "How  absurd  it  is 
to  suppose  that  when  different  parties  enter  into  a 
compact  for  certain  purposes  either  can  disregard  any 
one  provision  and  expect  nevertheless  the  other  to  ob 
serve  the  rest.  *  *  *  A  bargain  cannot  be  broken 
on  one  side  and  still  bind  the  other  side."  He  was 
discussing  "the  union  of  the  states"  and  the  preserva 
tion  of  that  union  by  due  observance  of  the  fugitive 
slave  clause  of  the  constitution.  In  1848  Mr.  Lincoln 
said  in  congress:  "Any  people  anywhere,  being  in 
clined  and  having  the  power,  have  the  right  to  rise  up 
and  shake  off  the  existing  government  and  form  a  new 
one  that  suits  them  better.  Nor  is  this  right  confined 
to  cases  in  which  the  whole  people  of  an  existing  gov 
ernment  may  choose  to  exercise  it.  Any  portion  of 
such  people  that  can  may  revolutionize." 

59 


THOMAS   JEFFERSON. 

Lincoln,  of  course,  was  here  speaking  of  the  right 
of  revolution.  But  it  does  not  matter  whether  seces 
sion  is  accomplished  as  a  compact  right  or  as  a  revolu 
tionary  right  so  long  as  it  is  a  right  and  not  a  wrong. 
The  compact  right  is  not  needed  and  need  not  be  ex 
pressed  if  the  right  exists  as  a  revolutionary  right. 
These  principles  are  old  and  familiar.  But  it  is  to  be 
hoped  that  for  all  time  to  come  that  questions  will  be 
settled  in  the  forum  and  with  the  ballot.  The  world 
has  seen  enough  of  force,  whether  used  to  suppress 
or  to  liberate.  The  new  order  of  things  demands  that 
peace  and  reason  shall  prevail.  It  recognizes  human 
life  as  sacred.  It  even  looks  upon  revolution  as  a 
doubtful  expedient.  It  therefore  reverts  to  Jefferson's 
words  in  the  declaration  of  independence,  which  cau 
tion  against  revolution  for  transient  causes.  Revolu 
tion  is  generally  physical  force.  The  triumph  of  rea 
son  ought  to  and  perhaps  already  has  supplanted  both. 

But  enough  authority  is  cited  to  show  that  Jeffer 
son  did  not  stand  alone  in  his  theories  of  government, 
and  that  he  was  not  a  dark  and  treacherous  influence 
against  which  all  the  powers  of  light  were  contend 
ing.  It  is  a  species  of  childish  casuistry  to  single  him 
out  as  the  author  of  the  nation's  woes.  This  is  not 
the  philosophic  view  of  history.  Acts  and  not  writ 
ings  produce  revolutions.  Men  are  too  taken  up  with 
the  affairs  of  their  own  lives  to  forsake  them  under 
the  influence  of  abstract  doctrines.  Men  react  because 
they  are  acted  upon,  and  not  otherwise. 

Happily  the  question  has  been  settled  and  no  one 
wants  to  reopen  it.  This  united  republic,  if  it  remains 
a  republic,  has  a  destiny  before  it  immeasurably  great- 
Go 


THOMAS   JEFFERSON. 

er  than  if  the  union  had  been  divided.  But  whether  it 
could  be  divided  and  whether  laws  could  be  nulli 
fied  were  questions  of  construction  upon  which  men 
differed  in  the  early  days  of  the  republic  and  differed 
frequently  upon  interest.  When  states  and  groups  of 
states  north  and  south  at  different  times  subscribed  to 
the  principles  of  the  Kentucky  resolutions,  when  Mad 
ison,  Webster  and  Lincoln  in  one  form  or  another  ad 
vocated  them,  and  when  a  great  majority  of  the  Amer 
ican  people  elected  Jefferson  president  upon  the  issue 
of  whether  these  resolutions  were  true  or  false,  the 
denouncement  of  Jefferson  is  particular  and  unjust. 

It  ill  becomes  a  breed  of  statesmen  who  no  longer 
mention  the  constitution  and  no  longer  pretend  to  ob 
serve  it  to  blacken  the  memory  of  this  great  man  whose 
passion  for  this  republic  is  one  of  the  purest  ideals  in 
history  and  whose  defense  of  the  constitution,  vigilant 
and  unremitting,  rises  to  the  sublimity  of  heroic  legend. 
Jefferson  was  a  constitutionalist.  He  believed  in  the 
constitution.  The  party  which  he  founded  was  and  is 
a  constitutional  party.  Moreover,  there  has  never  been 
any  other  constitutional  party  in  this  country.  All 
other  opposing  parties,  by  whatever  name  they  have 
gone,  have  done  their  utmost  to  undermine  the  consti 
tution  in  favor  of  special  privilege,  which  is  the  real 
soul  of  monarchy. 

In  Jefferson's  day  as  now  public  men  had  to  choose 
between  the  friendship  of  monopolists  and  the 
friendship  of  the  producers  of  wealth.  Himself 
of  the  landed  aristocracy  of  Virginia,  his  prin 
ciples  were  in  revolt  against  special  privilege. 
He  doubtless  found  fewer  congenial  spirits 

61 


THOMAS   JEFFERSON. 

among  those  whose  cause,  he  championed  than  he 
would  have  found  with  the  federalists.  But  he  made 
the  sacrifice  and  laid  himself  liable  to  the  charge  of 
demagogy,  which  was  common  even  in  his  day.  The 
federalists  hated  Jefferson  because  he  stood  in  their 
way.  He  was  against  their  bank  and  tariff  laws 
and  their  monarchial  tendencies.  He  exposed  their 
schemes  of  consolidation  and  monopoly.  His  omni 
present  influence,  subtle  and  irresistible,  baffled  them. 
His  pen  was  never  idle;  his  activities  permeated  the 
land.  He  gathered  together  the  people  whose  hearts 
still  vibrated  with  the  thunder  of  liberty  and  he  over 
threw  the  federalists,  horse  and  rider.  He  clothed  ab 
stract  principles  of  justice  and  equality  in  such  splen 
dor  that  the  popular  mind  was  won  from  the  seductions 
of  power  and  glory.  The  federalists  found  that  they 
were  not  for  America  nor  America  for  them.  After 
an  interregnum  of  monarchial  drift  America  resumed 
its  character  and  destiny.  Jefferson  as  president  right 
ed  the  course  of  the  republic.  He  became  its  tutor 
and  trained  it  so  thoroughly  that  the  federalists  took 
to  cover.  When  they  emerged  it  was  with  a  new  par 
ty,  which  bore  the  standard  of  moral  principles  tri 
umphant  at  last  by  the  living  influence  of  him  whose 
memory  they  abhorred. 

Jefferson  was  at  the  head  of  and  produced  the  clas 
sical  school  of  American  presidents.  His  principles 
embellished  and  strengthened  the  faculties  of  men  who 
would  have  been  mediocre  without  them.  He  gave 
form  and  purpose  to  the  republic.  His  political  canons 
became  law.  Madison  and  Monroe  followed  in  his 
footsteps.  Jackson  and  Van  Buren  learned  the  lesson 

62 


THOMAS  JEFFERSON. 

of  government  from  him.  He  was  the  political  father 
of  Lincoln.  The  speeches  of  every  great  statesman 
of  this  land  are  saturated  with  his  principles.  He  set 
loose  a  current  of  liberty  which  flows  around  the  world 
today  and  rocks  upon  its  bosom  the  toy  flotilla  of  im 
perialism.  The  breakers  and  the  depths  await  it. 

Such  was  the  man  Jefferson,  who  thought  so  lit 
tle  of  the  office  of  president  that  he  did  not  mention 
it  among  his  achievements.  He  wanted  to  be  remem 
bered  as  the  author  of  the  declaration  of  independence, 
the  statute  of  Virginia  for  religious  freedom  and  fath 
er  of  the  University  of  Virginia.  His  long  life  was 
spent  in  the  cause  of  liberty;  in  disseminating  knowl 
edge  ;  in  promoting  the  sciences ;  in  lifting  up  the  weak ; 
in  making  the  world  fitter  to  live  in;  in  constructing 
for  the  future.  Who  disputes  his  philosophy?  Who 
says  that  all  should  not  be  equal  before  the  law?  Who 
says  that  men  do  not  have  the  inalienable  rights  of 
life  and  liberty,  that  the  office  of  government  is  to 
secure  these  and  that  governments  derive  their  just 
powers  from  the  consent  of  the  governed? 

His  enemies  in  despair  have  tortured  his  kindness 
into  cowardice,  his  love  for  humanity  into  a  sordid 
desire  to  use  the  mob.  They  have  called  him  a  shifty 
doctrinaire.  The  word  means  little.  But  his  influ 
ence  was  not  bourgeois.  He  saw  the  new  day;  he 
turned  his  back  on  the  past.  He  followed  his  con 
science  and  the  light  of  his  mind  to  the  utmost  lim 
its.  There  was  no  remnant  of  monarchy  in  any  of  his 
practices  or  principles.  He  is,  therefore,  in  America 
at  least,  the  one  perfect  prophet  of  the  future. 

Almost  to  the  last  day  of  his  life  his  mind  hungered 

63 


THOMAS   JEFFERSON. 

for  knowledge  and  beauty.  In  the  weakness  of  ad 
vanced  age,  upon  the  last  steps  of  time,  he  was  read 
ing  the  bible  and  the  Greek  tragedies.  His  dying  hours 
took  him  back  fifty  years  through  a  period  of  revolu 
tion,  awakening  and  progress  to  the  day  that  was  above 
all  others  with  him.  "This  is  the  4th  of  July"  were 
the  last  words  he  uttered,  and  he  died  in  the  peace  of 
a  long  and  useful  life. 


ALEXANDER  HAMILTON. 

An  American  statesman  bewitched  by  the  English 
system;  a  revolutionary  soldier  fighting  against  the 
British  crown  as  the  unwilling  tories  fought  against 
James  II ;  a  monarchist  consulting  with  republicans  in 
the  formation  of  a  perfect  union  of  sovereign  states; 
a  thinker  whose  eyes  were  clouded  with  the  mist  of 
dissolving  feudalism;  a  politician  unconsciously  cling 
ing  to  the  doctrines  of  divine  right  and  haunted  by  a 
fear  of  a  tumultuary  democracy — such  a  man  gave  a 
lasting  impact  to  the  constitution  of  the  only  republic 
of  the  world. 

Alexander  Hamilton  at  30  years  of  age  was  a  mem 
ber  of  the  constitutional  convention.  He  conferred 
with  Washington;  he  debated  with  Madison;  he  de 
ferred  to  none.  On  the  contrary,  he  conjured  the 
frightful  specters  of  a  degraded  continental  confed 
eracy  and  played  upon  the  fears  of  the  stoutest  repub 
licans.  Among  a  body  of  men  notable  for  intellectual 
energy,  rich  in  experience  and  above  all  trained  in  the 
disquisitions  of  Locke  and  Montesquieu,  Rousseau  and 
the  French  encyclopedists,  he  launched  the  schemata 
of  a  monarchial  system  to  be  set  up  in  America.  Nor 
was  he  put  down  for  doing  this.  He  in  a  sense  suc 
ceeded.  He  imbedded  deep  in  the  body  of  that  con 
stitution  some  of  the  germs  of  monarchy.  He  nour 
ished  them.  He  founded  a  school  of  political  thought 

65 


ALEXANDER  HAMILTON. 

which  has  cherished  his  memory  and  blinked  at  his 
principles  when  it  was  not  safe  to  avow  them  openly. 
And  thus  his  ghost  has  stalked  throughout  the  history 
of  the  republic. 

Hence  this  is  a  dramatic  episode  in  political  history. 
The  commanding  genius  of  Jefferson  has  scarcely  been 
able  to  divide  the  control  of  American  polity  with  the 
inferior  genius  of  Hamilton.  A  republic  submitting 
to  the  incantations  of  a  monarchial  thinker  is  the  para 
doxical  relation  which  has  thriven  between  Hamilton's 
influence  and  the  United  States. 

This  complex  and  fascinating  mystery  dwarfs  the 
significance  of  Hamilton's  personal  career.  It  is  of 
subordinate  consequence  that  he  was  indiscreet,  vain 
and  opinionated;  that  he  envied  Burr's  superior  suc 
cess  in  affairs  of  the  heart;  that  he  published  his  own 
amours  with  a  frankness  not  surpassed  by  Rousseau; 
that  he  boldly  advocated  a  system  of  governmental 
corruption;  that  he  was  not  scrupulous  in  achieving 
his  ends  and  that  he  concocted  a  scheme  to  steal  the 
election  in  the  state  of  New  York  from  Jefferson.  To 
dwell  upon  these  things  and  to  neglect  the  supreme 
importance  of  his  political  influence  would  result  in 
missing  the  main  points  of  his  career. 

Hamilton's  mother  was  a  French  woman  and  to  her 
we  trace  his  refinement,  his  spirit  and  his  imagination. 
His  father  was  a  Scotchman  and  from  his  father  he 
inherited  resolution,  pertinacity  in  conviction,  great 
powers  of  analysis,  and  a  predilection  for  metaphysics. 
Thus  endowed  he  looked  far  into  the  future ;  he  sound 
ed  deeply  into  the  tides  of  destiny;  he  penetrated  the 
secrets  of  the  human  heart  and  laid  hold  upon  those 

66 


ALEXANDER  HAMILTON. 

impulses  which  from  their  permanency  and  strength 
could  be  relied  upon  to  carry  forward  his  projects. 

Yet  his  mental  construction  made  him  the  prey  of 
groundless  fears.  It  led  him  to  assert  fallacious  prem 
ises  as  the  bases  of  the  most  elaborate  political  super 
structures.  It  made  him  theoretical  and  impractical. 
It,  in  the  belief  of  one  great  school  of  thought,  veiled 
with  a  specious  splendor  a  false  and  indefensible  sys 
tem  of  government.  All  his,  political  reasonings  were 
characterized  by  the  fallacy  of  irrelevant  conclusion. 
He  seldom  exhausted  the  contents  of  a  proposition. 
And  therefore  his  famous  dictum  that  all  power  should 
be  given  neither  to  the  many  nor  the  few  has  no  ac 
curate  meaning  when  analyzed.  It  fails  to  include  the 
third  term  that  the  only  true  government  is  one  of  law 
and  not  of  men  at  all.  This  is  the  definition  of  a  re 
public,  a  word  not  understood  by  him  or  by  many  of 
his  contemporaries. 

Hamilton  had  an  unreasoning  fear  of  popular  institu 
tions.  They  suggested  to  him  the  hybrid  experiment 
of  Rome,  in  which  a  pure*  democracy  was  adulterated 
with  the  despotism  of  mobs  and  torn  by  the  strife  of 
warring  factions.  He  dwelt  upon  the  fate  of  the  Am- 
phictyonic  council;  he  drew  lessons  from  the  history 
of  the  German  confederacy  and  the  compact  of  the 
Swiss  cantons.  And  after  traversing  the  entire  field 
of  history  he  could  not  escape  the  conclusion  that  the 
United  States  must  be  governed  by  a  constitutional 
monarch.  This  was  his  hobby.  He  bestrode  it  until 
his  friends  were  wearied.  Even  Gouverneur  Morris, 
his  most  intimate  friend  and  eulogist,  wrote:  "More 
a  theoretic  than  a  practical  man,  he  was  not  sufficiently 

67 


ALEXANDER  HAMILTON. 

convinced  that  a  system  may  be  good  in  itself  and 
bad  in  relation  to  particular  circumstances." 

Hamilton  could  not  see  that  monarchy  had  its  place 
and  its  time  in  the  political  evolution  of  man,  but  that 
development  logically  led  to  popular  institutions.  In 
this  sense  the  significance  of  the  English  revolution 
was  lost  upon  him.  He  could  look  far  into  the 
future  and  plan  for  a  contingency  when  his  machina 
tions  upon  human  endeavor  and  sentiment  might  de 
generate  a  once  glorious  people  into  monarchy.  But 
he  could  not  interpret  his  own  age.  He  was  wedded 
to  the  past.  He  worshiped  power.  He  dreaded  a  free 
system  of  government  because  it  might  dissolve  into 
anarchy.  That  a  strong  government  might  become 
despotic  did  not  give  him  the  least  concern.  Nor  could 
he  see  that  the  English  system  which  he  affected  to 
admire  had  not  reached  the  end  of  its  popularization ; 
and  that  a  liberty  based  upon  scripture  and  a  liberty 
based  upon  philosophy  were  co-operating  toward  a  re 
alization  of  human  rights.  He  abhorred  the  French 
revolution  as  a  tragedy  of  disorder,  anarchy  and  blood. 
He  could  not  see  that  it  was  a  great  democratic  epic 
which  had  its  place  in  the  history  of  the  world.  And 
so  measured  by  the  test  of  insight,  of  mental  power, 
of  influence  upon  men  and  nations,  Hamilton  was 
greatly  beneath  Jefferson.  Hamilton  believed  that  the 
love  of  gold  in  man  was  an  energy  which  could  be  em 
ployed  to  operate  an  exclusive  system  of  government. 
All  his  measures  were  fashioned  upon  the  principle 
of  welding  the  interests  of  money  and  government  so 
indissolubly  together  that  the  spirit  of  monarchy  would 
control  the  body  of  the  republic.  And  he  worked  to 

68 


ALEXANDER  HAMILTON. 

this  end  with  a  patience,  a  subtlety  and  a  power  which 
have  challenged  the  admiration  of  all  parties. 

"He,"  wrote  Senator  Lodge,  "had  been  unable  to 
introduce  a  class  influence  into  the  constitution  by 
limiting  the  suffrage  for  the  president  and  senate  with 
a  property  qualification,  but  by  his  financial  policy  he 
could  bring  the  existing  class  of  wealthy  men,  com 
prising  at  that  day  the  aristocracy  bequeathed  by  pro 
vincial  times,  to  the  new  system  and  thus,  if  at  all,  as 
sure  to  the  property  of  the  country  the  control  of  the 
government."  And  why  was  this  to  be  done?  As  near 
as  we  can  gather  his  idea,  Hamilton  feared  that  un 
less  the  people  at  large  were  under  the  control  of  a 
class  which  possessed  the  wealth  of  the  country  and 
by  that  wealth  controlled  the  government,  they  would 
plunge  forward  into  anarchy.  This  system  was  a  mere 
expedient  based  upon  no  principle.  For  so  soon  as 
the  people  became,  if  they  were  not  then,  intelligent 
and  virtuous  the  government  must  settle  down  through 
the  sands  of  expediency  to  the  rock  of  principle.  And, 
taking  the  people  as  they  were  in  his  day,  the  question 
between  Jefferson  and  his  school  and  Hamilton  and 
his  school  may  be  reduced  to  this:  Do  the  preroga 
tives  of  equal  rights  in  government  furnish  a  sufficient 
inspiration  to  men  to  preserve  law  and  order  by  en 
listing  their  selfish  motives  on  the  side  of  their  own 
rights,  or  must  there  be  a  strong  party  intrenched  in 
power  by  governmental  favor  to  curb  and  govern  the 
tumultuary  classes?  No  government  can  long  last  in 
which  a  majority  of  the  people  find  their  rights  ignored, 
and  therefore  the  preservation  of  government  does  de 
pend  upon  that  very  interest  of  the  majority  in  the 

69 


ALEXANDER  HAMILTON. 

government  which  Hamilton  could  not  see  was  a  suffi 
cient  cohesion  to  hold  it  together.  But  in  any  event 
where  is  that  tumultuary  mass  which  would  burst 
asunder  the  bonds  of  restraint  if  they  were  weakened  ? 
That  millions  of  farmers  who  ask  nothing  from  the 
government  in  times  of  peace  and  give  their  lives  for 
it  in  times  of  war;  that  millions  of  artisans  the  most 
intelligent  of  the  world;  that  millions  of  professional 
men  who  pursue  their  way  in  life  so  peaceably  as  to 
be  unconscious  of  the  barriers  of  the  law — that  these, 
unless  restrained  by  a  strong  government,  will  sud 
denly  precipitate  disorder  and  anarchy  was  the  gro 
tesque  phantom  that  haunted  the  brain  of  Alexander 
Hamilton.  But  it  was  not  more  grotesque  than  most 
of  his  reasonings  on  politics  and  economics.  The 
question,  however,  which  he  had  in  mind  was  deeper 
than  he  ever  expressed  it.  The  strong  will  overreach 
the  weak ;  the  fit  will  survive.  Shall  government,  then, 
be  instituted  to  secure  justice?  No;  government  shall 
be  instituted  to  protect  the  strong  in  what  they  have 
obtained ;  to  curb  an  uprising  of  those  who  have  been 
wronged  in  the  race  of  life ;  to  cow  that  discontent  and 
subdue  that  disorder  which  never  arose  out  of  mere 
malice  and  wantonness,  but  always  as  a  reaction 
against  oppression,  and,  in  short,  to  redouble  the  vigor 
of  the  law  of  the  survival  of  the  fittest  in  order  to  crush 
into  tributary  submission  the  men  whose  industry 
produces  national  wealth.  Hence  Hamilton  admired 
the  British  system,  because  he  conceived  it  to  contain 
those  checks  which,  within  the  pale  of  law  and  order, 
restrained  the  rapacity  of  the  patricians  and  the  rebel 
lion  of  the  plebeians.  He  saw  in  the  house  of  lords 

70 


ALEXANDER  HAMILTON. 

a  body  of  men  having  nothing  to  hope  for  by  any 
change,  endowed  with  vast  property  by  the  govern 
ment  and  therefore  faithful  to  the  government  which 
had  purchased  their  friendship  and,  so  constituted, 
forming  a  barrier  against  the  aggression  of  the  crown 
and  the  clamor  of  the  commons.  But  we  know  that 
Hamilton's  estimate  of  the  house  of  lords  was  unsup 
ported  by  history.  He  was  about  30  years  of  age  when 
he  made  this  argument  in  the  constitutional  conven 
tion.  It  is  impossible  to  conceive  that  it  did  not  amuse 
such  scholars  as  Madison  and  Franklin. 

Hamilton  favored  the  model  of  the  English  execu 
tive.  He  contended  that  the  interest  of  a  king  is  so 
interwoven  with  that  of  the  nation  and  his  personal 
emolument  so  great  that  he  was  placed  above  the  dan 
ger  of  being  corrupted  from  abroad.  On  the  other 
hand,  one  of  the  weak  sides  of  republics  was  their  be 
ing  liable  to  foreign  influence  and  corruption.  He  did 
not  call  to  mind  the  alliance  between  Mary  of  England 
and  Philip  II  of  Spain,  nor  that  of  James  II  and  Louis 
XIV,  nor  that  Charles  II  was  a  pensioner  of  the  great 
French  despot.  Nor  did  he  consider  that  in  an  elective 
government  no  alliance  between  a  president  and  a  for 
eign  ruler  could  be  certain  or  long  reliable.  That  such 
a  contingency  has  never  been  even  approximated  in 
this  country  except  when  Hamilton's  peculiar  influence 
was  ascendant  is  sufficient  proof  that  Hamilton's  ar 
gument  was  purely  theoretic  and  fantastic.  But  while 
he  pictured  the  independence  of  the  house  of  lords  he 
insisted  as  a  political  principle  that  if  we  expect  men  to 
serve  the  public  their  passions  must  be  interested. 
Hence  he  applauded  that  patronage  which  proceeded 

71 


ALEXANDER  HAMILTON. 

from  the  crown,  denominated  by  David  Hume  as  cor 
ruption,  as  the  influence  which  maintained  the  equilib 
rium  of  the  British  constitution. 

Aside  from  the  unsoundness  of  these  principles  their 
ethical  baseness  cannot  be  sufficiently  condemned. 
They  involve  the  fallacy  of  doing  evil  that  good  may 
come.  They  constitute  a  scheme  of  homeopathy  in 
governmental  polity.  Petty  larceny  is  to  be  cured  by 
grand  larceny.  Private  dishonor  is  to  be  prevented  by 
public  plunder.  Men  who  are  capable  of  thriving 
above  their  fellows  under  any  condition  are  to  re 
ceive  special  aid  and  immunity  from  the  state  in  order 
to  win  their  adherence  to  it.  The  design  presupposes 
that  the  strong  will  not  impart  their  support  to  a  gov 
ernment  unless  the  government  first  gives  them  the 
chief  seats  and  doles  out  its  patronage  to  them.  No 
account  is  taken  of  the  better  element  of  human  nature, 
but  only  of  the  passions  of  greed  and  power.  The 
vast  millions  who  are  to  be  governed  and  who  will  raise 
the  revenue  for  this  perfect  state  must  be  held  in  abey 
ance  by  a  strong  military  which  Hamilton  championed 
with  great  energy  in  the  convention  in  order  that  their 
anarchistic  impulses  may  have  no  chance  to  find  ex 
pression. 

Such  a  plan  could  not  fail  to  be  immensely  success 
ful.  As  far  as  history  furnishes  any  record  the  human 
race  has  persistently  struggled  against  the  temptation 
of  money.  Evangels  and  prophets  have  exhorted 
against  the  love  of  money  as  the  root  of  all  evil.  That 
love  remains  an  ineradicable  passion  in  man.  Hence 
a  political  creed  that  promised  to  the  faithful  bounties 
and  subsidies,  privileges  and  immunities  has  gained  the 

72 


ALEXANDER  HAMILTON. 

support  of  millions.  The  mixture  of  fallacy  and  ter 
giversation,  corruption  and  greed  was  brewed  into  a 
broth  which  has  brought  toil  to  the  masses  and  trouble 
to  those  who  seek  to  press  the  cup  to  the  lips  of  a  re 
luctant  civilization. 

At  each  anniversary  of  Hamilton's  birth  the  post 
prandial  orators  praise  him  as  a  constructive  statesman. 
Was  he  in  truth  constructive?  Does  his  scheme  tend 
to  strengthen  individual  character  and  morality?  Does 
it  give  hope  to  the  better  aspirations  of  humanity? 
Does  it  elevate  the  race?  Does  it  assist  man  in  his 
difficult  ascent  to  the  heights  of  a  better  day?  Is  it 
in  accord  with  Christianity?  Is  there  justice  in  it,  or 
mercy  or  faith  ?  Or  is  it  armed  with  fraud  and  wrong, 
and  masked  with  the  mummery  of  a  hideous  skepti 
cism;  a  skepticism  that  parades  this  world  as  the  only 
theater  of  hope?  These  questions  must  be  answered 
by  everyone  who  cares  to  read  the  utterances  of 
Hamilton  in  the  constitutional  convention,  in  his  let 
ters,  in  his  state  papers  and  in  the  faithful  reports  of 
his  friends. 

Hamilton's  hobby  was  to  effect  consolidation  in  the 
government  and  make  it  strong.  The  means  by  which 
he  proposed  to  do  this  was  to  array  property  on  the 
side  of  government.  To  array  property  on  the  side 
of  government  he  designed  to  burden  the  people.  His 
scheme  was  constructive  so  far  as  it  built  up  a  pluto 
cracy  and  strengthened  the  government.  But  it  was 
destructive  of  the  people  themselves.  Hence  in  ac 
cepting  or  rejecting  Hamilton  a  choice  must  be  made 
between  an  artificial  body  known  as  the  state,  created 
by  man  as  a  means  to  an  end,  and  man  himself,  who 

73 


ALEXANDER  HAMILTON. 

formed  the  state  not  for  his  own  oppression,  but  for 
the  establishment  of  equity. 

Those  who  look  askance  upon  republican  institutions 
will  not  deplore  the  degenerating  influence  of  Hamil 
ton's  attacks  upon  the  constitution.  They  imagine 
that  his  genius  evolved  a  true  government  out  of  that 
constitution  which  was  the  product  of  the  greatest  as 
sembly  of  men  in  the  history  of  the  United  States. 
And,  of  course,  they  are  thankful  for  that.  But,  more 
over,  it  is  urged  that  the  means  themselves  which 
Hamilton  employed  to  bring  about  that  consolidation 
evinced  a  commanding  genius  for  finance  and  political 
economy  and  as  commercial  polities  were  themselves 
as  vital  breath.  But  his  national  bank  had  its  proto 
type  in  the  Bank  of  St.  George  at  Genoa,  the  Bank  of 
Amsterdam  and  the  Bank  of  England.  Its  interests — 
like  the  Bank  of  England — were  designed  to  be  coin 
cident  with  those  of  the  government.  Thereby  the 
money  of  the  country  was  to  be  brought  to  the  side 
of  the  government.  Even  to  details  the  bank  was  not 
an  original  conception.  The  charter  contained  many 
of  the  conditions  which  parliament  had  imposed  upon 
the  incorporators  of  the  English  bank.  It  was  given 
a  monopoly  of  the  national  banking  business.  It  could 
issue  paper  money.  For  the  virtue  of  this,  Hamilton 
argued,  was  to  keep  the  precious  metals  in  the  vaults, 
because  when  they  circulated  they  became  so  much 
dead  stock.  Such  were  his  ideas  upon  the  subject  of 
money.  But  they  were  in  harmony  with  the  zealous 
convictions  which  he  held  upon  the  solecism  of  a  fa 
vorable  balance  of  trade,  which  he  worshiped  with  an 
ardor  approaching  the  Egyptian  reverence  for  onions 

74 


ALEXANDER  HAMILTON, 

and  cats.  When  Hamilton  was  called  upon  to  defend 
his  banking  scheme  to  President  Washington  he  sub 
mitted  a  written  argument  in  answer  to  the  objections 
of  Jefferson,  which,  for  ingenuity,  subtlety  and  power, 
did  credit  to  his  peculiar  mind.  Indeed,  it  over 
matched  the  somewhat  desultory  and  inconclusive 
paper  of  Jefferson.  The  question  was :  Does  the  con 
stitution  permit  congress  to  incorporate  such  a  bank? 

Today  the  question  would  be :  Is  banking  a  govern 
mental  function  ?  Is  a  national  bank  an  economic  util 
ity?  Washington  was  seriously  perplexed  by  the 
reasons  urged  for  and  against  the  bank,  and  while  he 
was  deliberating  upon  it  the  question  arose  how  the 
ten  days  clause  of  the  constitution  for  the  president's 
approval  of  a  bill  was  to  be  construed.  Hamilton  ar 
gued  that  the  day  of  its  presentation  was  to  be  ex 
cluded  and  the  last  day  also.  It  resulted  that  Wash 
ington  held  the  bill  for  eleven  days  and  on  the  eleventh 
day  approved  it.  And  so  a  part  of  Hamilton's  col 
lateral  plan  to  overthrow)  the  constitution  was  accom 
plished. 

Of  Hamilton's  funding  scheme  it  is  only  necessary 
to  say  that  he  meant  to  create  a  permanent  public 
debt.  This  was  that  reservoir  into  which  the  money 
of  plutocracy  was  to  be  poured,  so  favorably  built  and 
placed  as  to  draw  to  itself  the  wealth  of  the  unsus 
pecting  people.  Historians  relate  in  triumphant  tones 
that  England's  prosperity  has  kept  pace  with  her  in 
creasing  debt.  And  the  economists  have  been  made 
the  butt  of  ridicule  by  men  who  call  themselves  prac 
tical.  The  former  assert  that  an  increasing  public  debt 
will  eventually  overwhelm  any  nation.  The  latter  re- 

75 


ALEXANDER  HAMILTON. 

ply  that  an  increasing  public  debt  is  a  means  to  pros 
perity  and  that  it  adds  strength  to  the  government.  In 
olden  times  there  was  supposed  to  be  a  causal  relation 
between  the  conjunction  of  planets  and  a  national  ca 
lamity.  Sometimes  national  prosperity  is  attributed 
to  national  character;  not  taking  into  account  abun 
dant  minerals  and  coal,  a  fertile  soil  and  a  favorable 
climate,  national  harbors  and  means  of  commerce. 

Children  associate  fortune  with  a  four-leafed  clover. 
And  all  mercantilists  of  which  Hamilton  was  a  con 
firmed  disciple  believe  that  a  national  debt  is  a  source 
of  prosperity ;  that  taxing  ourselves  makes  us  rich.  So 
the  protective  tariff,  also  inaugurated  by  Hamilton, 
has  clung  to  the  United  States  in  spite  of  all  efforts 
to  throw  it  off.  Whenever  the  people  have  voted  it 
out  they  repent  the  act  and  invite  it  back.  When  more 
men  are  wiser  and  when  those  who  are  wiser  are  more 
candid  the  attempt  to  confuse  public  thought  on  the 
questions  of  balance  of  trade,  public  debt,  government 
banks,  paper  money,  tariffs,  subsidies,  bounties  and 
special  privilege  as  efficient  means  of  prosperity  will 
decrease.  There  will  then  be  an  advance  beyond  the 
pale  of  the  seventeenth  century  in  economics.  If  the 
foregoing  plans  are  constructive,  then  Hamilton  is  en 
titled  to  the  immortal  reverence  of  the  American  peo- 
pie. 

But  is  not  a  spirit  of  justice  pervading  all  systems 
and  all  polities  the  only  constructive  force?  Can  a 
great  nation  be  constructed  except  by  building  up  its 
people  as  a  whole?  At  least  more  than  half  of  the 
people  of  both  England  and  the  United  States  believe 
that  justice  and  equality  applied  to  these  subjects  are 

76 


ALEXANDER  HAMILTON. 

the  only  curatives.  They  are  not  sufficiently  organized 
or  cohesive,  however,  to  push  forward  with  much  speed 
against  casual  undertows  and  countervailing  currents. 

While  Hamilton  and  Jefferson  were  not  political 
friends  no  man  has  spoken  more  favorably  of  the  for 
mer  than  the  founder  of  the  democratic  party.  In  the 
much  abused  "Anas"  Jefferson  wrote  in  1818:  "Ham 
ilton  was  indeed  a  singular  character.  Of  acute  un 
derstanding,  disinterested,  honest  and  honorable  in  all 
private  transactions,  amiable  in  society  and  duly  valu 
ing  virtue  in  private  life,  yet  so  bewitched  and  per 
verted  by  the  British  example  as  to  be  under  thorough 
conviction  that  corruption  was  essential  to  the  govern 
ment  of  a  nation."  And  to  Benjamin  Rush  he  wrote : 
"Hamilton  believed  in  the  necessity  of  either  force  or 
corruption  to  govern  men." 

Hamilton  and  Burr  had  maligned  each  other  for 
years.  This  hatred  culminated  in  a  duel.  Hamilton 
fell.  Gouverneur  Morris  pronounced  his  funeral  ora 
tion,  gliding  with  trepidation  over  the  dark  places  in 
the  great  man's  career.  His  body  was  buried  in  Trin 
ity  churchyard  at  the  foot  of  Wall  street,  where  imag 
ination  may  picture  his  spirit  hovering  over  the  tem 
ple  of  English  monarchy  and  peering  down  one  of  the 
greatest  money  centers  of  the  world. 


77 


IMPLIED  POWERS  AND  IMPERIALISM. 

No  "progressive  development"  of  the  constitution 
can  ever  obliterate  its  original  character  and  meaning 
upon  many  of  its  important  features.  This  is  true  be 
cause  its  authors  employed  language  as  a  whole  which 
is  remarkably  clear;  and  the  proceedings  of  state  con 
ventions  and  the  writings  of  contemporary  statesmen 
furnish  additional  data  for  construction  and  exposition. 
Thus  the  federal  principle  of  the  United  States  govern 
ment  is  one  of  the  most  conspicuous  things  in  the  con 
stitution.  The  constitution  was  adopted  by  states,  it 
was  to  be  binding  between  states  when  nine  had  rati 
fied  it,  and  it  was  to  be  amended  by  states.  The  sena 
tors,  first  called  ambassadors,  were  to  represent  states. 
The  president  was  to  be  elected  by  electors  from  states. 
The  federal  courts  were  to  decide  controversies  be 
tween  citizens  of  different  states,  and  controversies 
where  conflicting  claims  of  different  states  were  in 
volved.  Though  development  may  wipe  out  the  prac 
tical  effects  of  these  principles  of  the  constitution,  his 
tory  cannot  be  obscured.  So  long  as  writings  exist 
the  original  nature  of  the  government  will  be  clear 
to  any  man  who  can  read. 

Nor  can  any  ingenuity  argue  away  the  fact  that  the 
United  States  government  was  created  as  a  government 
of  special  and  limited  powers.  For  the  ninth  amend 
ment  to  the  constitution  reads :  "The  enumeration  in 

78 


IMPLIED    POWERS    AND    IMPERIALISM. 

the  constitution  of  certain  rights  shall  not  be  construed 
to  deny  or  disparage  others  retained  by  the  people." 
This  is  a  most  pregnant  provision.  For  it  is  equiva 
lent  to  saying  that  the  failure  to  deny  a  power  in  the 
general  government  shall  not  be  construed  to  grant  it. 
It  means  that  the  constitution  is  not  a  limitation  upon 
power.  Directly  bearing  upon  the  limited  character 
of  this  government  is  the  Tenth  amendment  which 
reads  "the  powers  not  delegated  to  the  United  States 
nor  prohibited  by  it  to  the  states  are  reserved  to  the 
states  respectively  or  to  the  people."  Human  speech 
is  not  capable  of  more  precise  meanings  than  these 
clauses  convey.  How  did  they  come  to  be  inserted  in 
the  constitution? 

A  confederation  of  states  comprising  a  population  of 
some  3,000,000  people  had  repelled  an  army  of  subju 
gation,  and  had  returned  to  the  walks  of  civil  life. 
This  birth  of  freedom  brought  its  reaction.  The  aris 
tocracy  never  wanted  war  with  England.  After  it 
was  over  the  cynical  and  selfish  elements  of  the  people 
hastened  the  dying  down  of  the  patriotic  fires.  The 
war  had  interrupted  business  and  now  to  return  to 
practical  questions  since  the  country  was  cut  loose 
from  the  parent  government,  treaties  must  be  made, 
commerce  must  resume  its  offices,  and  the  United 
States  must  take  their  place  as  an  entity  in  the  world. 
If  that  day  could  be  reconstructed  in  imagination  the 
people  as  a  whole  would  be  seen  going  their  way  in 
the  usual  routine  of  life  as  happy  and  contented  as 
they  have  done  since  under  the  constitution.  People 
and  not  charters  are  the  realities  of  life.  Little  credit 
can  be  given  by  the  philosophic  historian  to  the  claim 

79 


IMPLIED    POWERS    AND    IMPERIALISM. 

that  the  people  were  drifting  toward  anarchy  because 
the  articles  of  confederation  contained  defects — de 
fects  which  did  not  break  down  the  people  during  a 
period  of  war  and  revolution.  But  conceding  that 
changes  in  the  organic  law  were  needful  and  important 
the  convention-call  expressed  the  purpose  of  "revis 
ing  the  articles  of  confederation."  The  commercial 
interests  demanded  the  revision.  In  order  that  the 
States  could  act  with  unity  in  foreign  relations  it  was 
necessary  that  the  general  government  should  have 
more  direct  powers ;  for  in  such  things  energy  and  ce 
lerity  are  prerequisites  of  safety. 

The  constitution  created  a  form  of  government  never 
known  before.  There  had  been  successful  confedera 
cies  before  the  American  confederacy,  and  the  latter 
was  certainly  successful.  These  confederacies  fell 
through  the  decay  of  the  particular  sentiment  which 
gave  them  birth.  The  American  confederacy  was  uni 
fied,  it  was  given  the  spirit  by  the  impulse  of  liberty 
which  had  been  enkindled  by  oppression.  Once  the 
revolution  was  over  the  spirit  of  liberty  subsided  to 
some  extent  from  a  national  channel,  through  the 
removal  of  the  cause  that  drew  it  there  and  returned  to 
more  local  and  more  individual  and  therefore  more 
practical  channels.  It  is  probably  beyond  the  capacity 
of  the  human  intellect  to  determine  whether  if  no 
change  had  been  made  in  the  form  of  the  government 
the  legitimate  development  of  the  people  would  have 
been  different  from  what  it  turned  out  to  be.  If 
the  people  could  once  unite  in  a  confederacy  and  save 
themselves  they  could  do  so  again  so  long  as  they  kept 
the  spirit  of  independence;  and  when  that  is  gone 

80 


IMPLIED    POWERS    AND    IMPERIALISM. 

neither  institutions  nor  constitutions  will  forestall  for 
eign  rule. 

The  form  of  government  created  by  the  constitution 
is  novel  in  this  that  it  is  both  confederative  and  na 
tional.  Out  of  confederated  states  rises  a  distinct  en 
tity  concerned  with  functions  which  it  has  been  em 
powered  by  the  states  to  perform;  and  this  entity  is 
divided  according  to  the  principles  of  Montesquieu 
into  the  departments  of  legislative,  executive  and  judi 
cial,  acting  within  their  delegated  powers  as  if  a  gen 
eral  government  had  been  created  which  had  obliterat 
ed  every  feature  of  the  confederacy.  In  this  creation 
a  step  was  taken  beyond  any  former  attempt.  It  was 
an  evolutionary  development  beyond  the  philosophy  of 
all  political  thinkers  who  lived  before  that  day. 

The  necessity  for  revising  the  old  articles  of  con 
federation  was  felt  on  all  hands ;  but  at  the  same  time 
the  people  feared  that  the  benefits  of  the  revolution 
might  be  lost  through  the  creation  of  a  centralized 
government.  The  sedate,  the  orderly,  the  conserva 
tive  elements  of  society,  the  people  who  amass  wealth 
and  attain  position  and  power  through  its  influence, 
complained  of  the  excesses  of  democracy.  They  took 
advantage  of  the  disorder  which  follows  a  war,  the 
embarrassment  which  accompanies  interrupted  comr 
merce  to  argue  in  favor  of  a  stronger  government. 
And  all  the  ills  which  afflicted  the  new  republic  at 
tributable  not  to  the  form  of  government  entirely  but 
to  events  from  which  they  logically  flowed  were 
charged  to  the  weakness  of  the  confederacy.  Never 
theless  the  hostility  against  the  creation  of  a  central 
government  in  which  local  self  government  would  be 

81 


IMPLIED    POWERS    AND    IMPERIALISM. 

engulfed  was  so  great  that  out  of  sixty-five  delegates 
selected  to  attend  the  constitutional  convention  six 
teen  failed  to  appear.  Patrick  Henry  declined  the  ap 
pointment  altogether;  and  ten  refused  to  sign  the 
constitution  after  it  was  formulated.  Of  the  three 
delegates  sent  by  New  York  two  returned  when  they 
feared  that  the  convention  was  proceeding  not  to  re 
vise  the  articles  of  confederation  but  to  go  much  be 
yond  that  in  the  formation  of  a  government  unknown 
and  probably  of  doubtful  power.  These  facts  demon 
strate  the  feelings  of  the  most  thoughtful  people  of  the 
time  and  their  aversion  to  a  government  which  could 
be  tortured  by  construction  or  development  into  an  en 
gine  of  oppression. 

But  Mr.  Madison  in  Article  44  of  the  Federalist  in 
sisted  that  the  constitution  invigorated  the  powers  of 
the  articles  of  confederacy,  and  added  but  a  few  new 
powers.  These  he  said  were  the  power  to  raise  revenue 
by  taxes  directly  levied  upon  the  people;  the  power 
to  make  naturalization  laws  uniform  throughout  the 
United  States,  and  like  uniform  laws  of  bankruptcy; 
the  power  to  issue  patents  and  copyrights  and  the 
power  to  regulate  trade  with  foreign  nations,  and 
among  the  several  states.  New  restraints  upon  the 
states  prohibited  them  from  emitting  bills  of  credit, 
or  making  anything  but  gold  or  silver  legal  tender  in 
the  payment  of  debts;  prohibiting  them  from  passing 
any  bill  of  attainder  or  ex  post  facto  law,  or  law  im 
pairing  the  obligation  of  contracts ;  or  from  laying  any 
imposts  or  duties  upon  imports  or  granting  any  title 
of  nobility.  Under  the  constitution  the  states  control 
their  militia  and  Congress  can  only  organize  them, 

82 


IMPLIED    POWERS    AND    IMPERIALISM. 

arm  them  and  call  them  out  for  service.  Under  the 
articles  of  confederation  Congress  had  the  power  to 
appoint  all  the  officers  of  the  state  militia;  while  un 
der  the  constitution  Congress  cannot  appoint  these  of 
ficers,  but  their  appointments  rest  with  the  states 
whether  the  militia  be  in  service  or  not.  Outside  of 
these  provisions  the  constitution  is  a  replica  of  the 
Articles  of  Confederation  in  respect  to  the  powers 
created  in  either.  The  federal  judiciary  was  a  new 
feature,  but  the  constitution  invested  it  with  powers 
which  Congress  exercised  under  the  articles  of  con 
federation. 

But  by  the  articles  of  confederation  it  was  pro 
vided  that  "every  power,  jurisdiction  and  right  which 
is  not  by  this  confederation  expressly  delegated  to  the 
United  States  in  Congress  assembled"  is  retained  by 
each  state.  The  constitution  did  not  contain  such  a 
provision.  On  the  contrary  after  granting  all  the  old 
powers  except  as  noted  Congress  was  empowered  to 
make  all  laws  "which  shall  be  necessary  and  proper 
for  carrying  into  execution  the  foregoing  powers." 
This  became  known  as  the  "sweeping  clause"  in  the 
discussions  upon  the  constitution  when  it  went  to  the 
states  for  ratification. 

The  history  of  the  "sweeping  clause"  is  as  follows: 
On  the  second  working  day  of  the  convention,  May 
29,  1787,  Charles  Pinckney,  delegate  from  South 
Carolina  offered  a  draft  of  a  constitution  which  almost 
in  substance  and  largely  in  language  was  the  instru 
ment  finally  approved  by  the  convention.  William 
Patterson  of  New  Jersey  also  offered  a  draft  which 
was  considered  and  debated  upon.  A  committee  ap- 

83 


IMPLIED    POWERS    AND    IMPERIALISM. 

pointed  from  the  body  was  instructed  to  consider  the 
Pinckney  and  Patterson  plans,  which  consisted  of  John 
Rutledge  of  South  Carolina,  Edmund  Randolph  of  Vir 
ginia,  Nathaniel  Gorham  of  Massachusetts,  Oliver  Ells 
worth  of  Connecticut  and  James  Wilson  of  Pennsyl 
vania.  Of  the  five  three  were  accomplished  lawyers. 

Pinckney's  plan,  after  providing  for  power  in  Con 
gress  to  declare  war,  provide  for  the  common  defense, 
and  to  do  other  things  much  as  the  grant  stood  in  the 
constitution  as  adopted,  invested  Congress  'with  power 
as  follows: 

"And  make  all  laws  for  carrying  the  foregoing  pow 
ers  into  execution/' 

The  committee  in  question  reported  on  August  6, 
1787,  after  giving  both  plans  thorough  consideration 
and  submitting  each  clause  to  rigid  scrutiny.  In  the 
draft  that  they  reported  back  to  the  convention  they 
amended  the  clause  just  quoted  so  as  to  read: 

"To  make  all  laws  that  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  pow 
ers,"  etc. 

The  committee  had  inserted  the  words  "necessary 
and  proper"  and  had  improved  the  rhetoric  of  the 
Pinckney  clause.  In  this  form  it  went  before  the  peo 
ple  for  adoption. 

In  the  Virginia  state  convention  which  ratified  the 
constitution  Edmund  Randolph,  who  was  a  member 
of  the  committee  which  inserted  the  words  "necessary 
and  proper"  hastened  to  assure  the  people  that  the 
clause  was  harmless.  It  was,  he  said,  a  safeguard 
against  monopolies.  "This  fundamental  clause,"  said 
he,  "does  not  in  the  least  increase  the  powers  of  Con- 


IMPLIED    POWERS    AND    IMPERIALISM. 

gress.  It  is  only  inserted  for  greater  caution.  No 
sophistry  will  be  permitted  to  explain  away  these 
powers,  nor  can  they  possibly  assume  any  other  pow 
er,  but  what  is  contained  in  the  constitution  without 
usurpation." 

In  the  same  convention  Patrick  Henry  declared  that 
"when  men  give  power  they  know  not  what  they 
give."  And  of  those  who  argued  that  the  exercise  of 
power  which  he  feared  would  never  be  resorted  to,  he 
asked  "why  give  power  so  totally  unnecessary  that 
it  is  said  it  will  never  be!  used?" 

Edmund  Pendleton  on  June  14,  1788,  also  made  a 
speech  on  the  "sweeping  clause."  "I  understand  that 
clause  as  not  going  a  single  step  beyond  the  delegated 
powers.  What  can  it  act  upon?  Some  power  given 
by  the  constitution.  If  they  should  be  about  to  pass 
a  law  in  consequence  of  this  clause  they  must  pursue 
some  of  the  delegated  powers,  but  can  by  no  means 
depart  from  them,  or  arrogate  any  new  powers  for 
the  plain  language  of  the  clause  is  to  give  them  power 
to  pass  laws  in  order  to  give  effect  to  the  delegated 
powers." 

George  Mason  wanted  an  amendment  so  as  to  make 
the  point  clear;  but  amendments  to  this  clause  which 
to  many  minds  was  already  perspicuous  beyond  doubt 
seemed  caution  run  mad ;  and  as  the  whole  convention 
was  agreed  upon  an  amendment  declaring  that  powers 
not  delegated  were  reserved  the  question  seemed  to 
be  covered  completely.  Notwithstanding  this  George 
Nicholas  wished  an  amendment  to  be  introduced  in 
order  to  remove  all  apprehensions.  John  Marshall 
who  was  present,  and  who  by  an  almost  dramatic  irony 

85 


IMPLIED    POWERS    AND    IMPERIALISM. 

of  fate  was  to  construe  the  clause  in  question  as  Chief 
Justice  of  the  Supreme  Court,  lent  his  influence  to 
quiet  the  panic:  "The  State  governments,"  he  said, 
"did  not  derive  their  powers  from  the  general  govern 
ment,  but  each  government  derived  its  powers  from  the 
people,  and  each  was  to  act  according  to  the  powers 
given  it/*  Then  adverting  to  "the  sweeping  clause" 
he  said,  "Does  not  a  power  remain  until  it  is  given 
away?" 

Such  were  the  deliberations  of  Marshall's  own  state, 
deliberations  in  which  he  joined,  and  deliberations  to 
which  he  contributed  the  weight  of  his  influence  in 
persuading  a  cautious  and  reserved  people,  fresh  from 
revolution,  to  have  no  fear  of  the  new  government. 

James  Wilson  had  insisted  in  the  Pennsylvania  Con 
vention  on  November  24,  1787,  that  all  power  resided 
in  the  people,  and  that  the  v/ords:  "We,  the  people," 
meant  a  grant  from  the  whole  people  for  the  purposes 
of  a  common  government.  And  it  followed  as  a  neces 
sary  corollary  from  his  premises  that  whatever  power 
was  not  granted  by  the  people  was  retained  by  the 
people,  except  as  they  may  have  surrendered  it  to  the 
several  states. 

While  the  constitution  was  pending  before  the 
states  Jay,  Madison  and  Hamilton  were  publishing  a 
series  of  articles  in  the  New  York  papers  in  favor  of 
the  new  constitution.  On  January  3,  1788,  one  of 
these,  written  by  Hamilton,  appeared  in  the  Daily 
Advertiser,  and  in  discussing  the  "sweeping  clause" 
Hamilton  said: 

"It  conducts  us  to  this  palpable  truth  that  a  power 
to  lay  and  collect  taxes  must  be  a  power  to  pass  laws 

86 


IMPLIED    POWERS    AND    IMPERIALISM. 

necessary  and  proper  for  the  execution  of  that  power ; 
and  what  does  the  unfortunate  and  calumniated  pro 
vision  do  more  than  declare  the  same  truth,  to  wit; 
that  the  national  legislature  to  whom  the  power  of 
laying  and  collecting  taxes  had  been  previously  given, 
might  in  the  execution  of  that  power  pass  all  laws  nec 
essary  and  proper  to  carry  it  into  effect."  *  *  * 
"The  declaration  itself,  though  it  may  be  chargeable 
with  tautology  or  redundancy  is  at  least  perfectly 
harmless." 

If  Hamilton  were  right  in  this  and  the  people  felt 
assured  upon  the  subject  they  had  no  reason  to  fear 
that  twenty  years  after  Marshall  would  hold  that  the 
"necessary  and  proper"  clause  "purports  to  enlarge 
and  not  to  diminish  the  powers  vested  in  the  govern 
ment"  and  "purports  to  be  an  additional  power  and 
not  a  restriction." 

In  any  deliberative  assembly  there  is  a  compound 
of  diverse  prejudices  and  convictions.  All  minds  do 
not  perceive  the  fundamental,  the  essential.  Some  see 
the  subsidiary,  the  accidental  and  couple  with  their  im 
perfect  perception  energy  to  demand  and  eagerness 
to  debate.  Any  organic  law  is  the  product  of  such 
warring  minds.  And  besides  a  constitution  cannot 
from  its  character  contain  much  detail.  If  it  descends 
to  trifles,  to  ways  and  means;  if  it  is  overloaded  with 
restrictions  and  exceptions  and  qualified  by  still  others 
for  greater  certainty  it  becomes  a  prolix  puzzle  which 
only  the  very  learned  and  the  very  patient  can  com 
prehend.  But  there  is  such  a  thing  as  mental  integ 
rity,  which  forbids  construing  an  instrument  of  free 
dom  into  a  charter  of  despotism.  No  constitution  can 

87 


IMPLIED    POWERS    AND    IMPERIALISM. 

be  drawn  by  the  wit  of  man  which  cannot  be  forged 
into  a  weapon  of  wrong  and  oppression  by  loquacious 
sophistry.  Subtleties  may  confound  the  plainest 
truths  and  arguments  be  advanced  to  justify  any  pre 
tension,  however  repugnant  to  justice.  So  that  in  the 
last  analysis  morality  becomes  the  final  arbiter  of  a 
people's  fate.  The  most  careful  system  will  collapse 
under  the  assaults  of  intriguing  and  unscrupulous  spe 
cial  privilege.  It  is  left  to  us  to  infer  that  such  gen 
eral  considerations  as  forbade  the  formation  of  a  mere 
code,  overcame  the  recommendations  of  the  states  on 
the  subject  of  an  amendment  prohibiting  commercial 
monopolies.  If  all  powers  not  granted  were  reserved, 
the  most  prophetic  insight  could  not  have  foreseen 
that  the  power  to  erect  a  "commercial  monopoly"  could 
be  drawn  from  powers  "necessary  and  proper"  to  the 
execution  of  enumerated  powers.  The  amendments 
which  were  adopted  at  the  instigation  of  the  suspicious 
and  reluctant  states  were  of  a  character  calculated  to 
satisfy  the  most  critical. 

Again  it  was  generally  known  that  the  power  to 
create  corporations  had  been  expressly  raised  in  the 
constitutional  convention  and  rejected.  And  if  in  the 
language  of  Marshall  in  the  Virginia  convention  a 
"power  remains  until  it  is  given  away"  no  power  was 
given  away  which  was  expressly  proposed  and  express 
ly  denied.  Marshall's  dictum  was  true  even  if  there 
had  been  silence  on  the  subject ;  how  much  truer  was  it 
when  the  convention  had  spoken  its  negative  to  the 
grant  of  power  to  create  corporations.  This  action  of 
the  convention  was  generally  known ;  for  .many  of  its 
members  returned  to  their  respective  states  to  become 

83 


IMPLIED    POWERS    AND    IMPERIALISM. 

members  of  the  state  conventions  for  adoption,  and 
brought  with  them  intimate  knowledge  and  quickened 
intelligence  upon  the  constitution  and  its  meaning. 

In  fact  Mr.  Madison  on  August  18,  1787,  submitted 
to  the  convention  to  be  referred  to  the  committee  on 
detail  certain  powers  to  be  added  to  those  of  the  gen 
eral  legislature  among  which  was  the  following: 

"To  grant  charters  of  incorporation  in  cases  where 
the  public  good  may  require  them  and  the  authority  of 
a  single  state  may  be  incompetent." 

On  September  14,  1787,  Dr.  Franklin  moved  to  add 
after  the  words :  "Post  roads"  (Art.  i,  Sec.  8)  a  grant 
of  power  "to  provide  for  cutting  canals  where  deemed 
necessary." 

Mr.  Madison  then  added  to  Dr.  Franklin's  motion 
a  power  which  he  had  submitted  on  August  i8th,  as 
already  stated  "to  grant  charters  of  incorporation 
where  the  interests  of  the  United  States  might  require 
and  the  legislative  provisions  of  individual  states  may 
be  incompetent." 

"Mr.  Randolph  seconded  the  proposition." 

"Mr.  King  thought  the  power  unnecessary.  The 
states  will  be  prejudiced  and  divided  into  parties  about 
it.  In  Philadelphia  and  New  York  it  will  be  referred 
to  the  establishment  of  a  bank,  which  has  been  a  sub 
ject  of  contention  in  those  cities.  In  other  places  it 
will  be  referred  to  mercantile  monopolies." 
********* 

"The  question  being  so  modified  as  to  admit  a  dis 
tinct  question  specifying  and  limited  to  the  case  of 
canals  the  vote  was  taken  with  the  following  result: 
Pennsylvania,  Virginia  and  Georgia — Aye,  3;  New 

89 


IMPLIED    POWERS    AND    IMPERIALISM. 

Hampshire,  Massachusetts,  Connecticut,  New  Jersey, 
Delaware,  Maryland,  North  Carolina  and  South  Caro 
lina,  No,  8.  T!he  whole  matter  fell."  As  seen  two 
southern  states  and  one  northern  state  voted  aye;  five 
northern  states  and  three  southern  states  voted  no. 

The  states  were  not  satisfied  with  the  argument  that 
powers  not  given  away  are  retained  although  histor 
ically  and  legally  it  was  perfectly  valid.  The  dread  of 
mercantile  monopolies  and  of  banks,  the  fear  that  si 
lence  in  the  constitution  might  be  used  against  the 
states  for  the  creation  of  corporations  in  general  by 
Congress  led  them  to  suggest  amendments  to  the  con 
stitution  which  would  prevent  the  exercise  of  such 
power.  It  was  an  act  of  caution  characteristic  of  hu 
man  nature,  but  logically  was  out  of  place.  For  as 
under  the  articles  of  confederation  each  state  re 
tained  its  sovereignty  and  every  power  not  expressly 
granted,  and  as  they  had  not  in  the  constitution  part 
ed  with  their  sovereignty  but  had  only  granted  cer 
tain  sovereign  powers  or  incidents  of  sovereignty  it 
could  not  be  necessary  to  negative  the  grant  of  some 
thing  which  could  not  pass.  The  precautionary  lan 
guage  in  fact  lent  color  to  a  specious  claim  that  the 
new  government  was  something  different  than  it 
really  was. 

Massachusetts  was  one  of  the  first  states  to  ratify 
the  constitution ;  and  its  action  preceded  that  of  South 
Carolina  or  Virginia  by  several  months.  And  in  its 
instrument  of  ratification  it  was  declared  that: 

"It  is  the  opinion  of  this  convention  that  certain 
amendments  and  alterations  in  the  said  constitution 
would  remove  the  fears  and  quiet  the  apprehensions 

90 


IMPLIED    POWERS    AND    IMPERIALISM. 

of  many  of  the  good  people  of  this  commonwealth,  and 
more  effectually  guard  against  an  undue  administra 
tion  of  the  federal  government." 

And  the  convention  recommended  as  amendments: 

I.  "That  it  be  explicitly  declared  that  all  powers  not 
expressly  delegated  by  the  aforesaid  constitution  are 
reserved  to  the  several  states  to  be  by  them  exercised. 

V.  "That  Congress  erect  no  company  of  merchants 
with  exclusive  advantages  of  commerce." 

New  Hampshire  ratified  the  constitution  before  Vir 
ginia  and  in  its  instrument  of  ratification  it  was  set 
forth : 

"As  it  is  the  opinion  of  the  convention  that  certain 
amendments  and  alterations  in  the  said  constitution 
would  remove  the  fears  and  quiet  the  apprehensions 
of  many  of  the  good  people  of  this  state  and  more  ef 
fectually  guard  against  an  undue  administration  of 
the  federal  government." 

It  was  recommended  that  the  following  amendments 
to  the  constitution  be  made: — 

I.  "That  it  be  explicitly  declared  that  all  powers  not 
expressly  and  particularly  delegated  by  the  aforesaid 
constitution  are  reserved  to  the  several  states  to  be 
by  them  exercised." 

V.  "That  Congress  shall  erect  no  company  of  mer 
chants  with  exclusive  advantages  of  commerce." 

John  Marshall  was  a  member  of  the  Virginia  state 
convention  and  participated  in  its  debates.  Virginia 
ratified  the  constitution  on  June  26,  1788,  a  month 
after  South  Carolina  ratified  it,  and  a  month  before 
New  York  ratified  it  and  in  its  instrument  of  ratifica 
tion  the  people  of  Virginia  said: 


IMPLIED    POWERS    AND    IMPERIALISM. 

"With  these  impressions"  that  "every  power  not 
granted  thereby  remains  with  them  and  at  their  will" 
and  that  nothing  can  be  done  by  the  house  and  senate 
or  the  president  "except  in  those  instances  in  which 
power  is  given  for  those  purposes"  they  accepted  the 
constitution. 

South  Carolina  ratified  the  constitution  on  May  23, 
1788,  and  its  convention  declared  that: 

"This  convention  doth  also  declare  that  no  section 
or  paragraph  of  said  constitution  warrants  a  construc 
tion  that  the  states  do  not  retain  every  power  not  ex 
pressly  relinquished  by  them,"  etc. 

New  York  ratified  the  constitution  on  July  26, 
1788,  and  its  convention  incorporated  in  the  instru 
ment  of  ratification  these  words: 

"That  every  power,  jurisdiction  and  right  which  is 
not  by  the  said  constitution  clearly  delegated  to  the 
congress  of  the  United  States  or  the  departments  of 
the  government  thereof  remains  to  the  people  of  the 
several  states."  *  *  *  *  "Clauses  which  deny 
powers  do  not  imply  powers  not  so  negatived,  but  are 
exceptions  to  specified  powers  or  are  inserted  for 
greater  caution." 

And  it  was  recommended  as  an  amendment: 

"That  the  Congress  do  not  grant  monopolies  or  erect 
any  company  with  exclusive  advantages  of  commerce." 

Of  the  nine  states  which  first  adopted  the  constitu 
tion,  nine  being  necessary  to  establish  it,  New  Hamp 
shire  was  last.  Three  of  the  original  nine  made 
recommendations  as  already  noticed  for  specific  amend 
ments  in  order  to  preserve  local  powers  and  to  limit 
the  constitutional  grant.  Two  of  these  were  north- 

92 


IMPLIED    POWERS    AND    IMPERIALISM. 

ern  states  and  one  was  a  southern  state.  Massachu 
setts,  the  home  of  Puritanism,  led  off  as  shown  with 
declarations  and  amendments  and  New  Hampshire 
followed  her  example  using  almost  the  same  language 
of  the  Massachusetts  ratification.  New  York,  which 
was  the  eleventh  state  in  point  of  time  to  ratify  the 
constitution,  proposed  amendments  as  already  appears 
and  of  the  eleven  states  which  had  ratified  the  con 
stitution  by  March  4,  1789,  five  had  proposed  amend 
ments  of  limitation  and  of  these  three  were  northern 
states  and  two  were  southern  states.  Rhode  Island, 
which  adopted  the  constitution  on  May  29,  1790, 
declared  in  its  instrument  of  ratification  that: 

"Every  power,  jurisdiction  and  right  which  is  not 
by  the  said  constitution  clearly  delegated  to  the  con 
gress  of  the  United  States,"  etc.,  "remains  to  the  peo 
ple/'  and  the  convention  recommended  an  amend 
ment  providing: 

"That  Congress  erect  no  company  with  exclusive 
privileges  of  commerce." 

The  revolutionary  spirit,  the  consciousness  of  lib 
erty  dearly  bought  prompted  these  suggested  amend 
ments.  They  were  inspired  by  jealousy,  by  an  intui 
tion  of  human  nature  with  its  passions  for  power. 
The  courageous  men  who  disregarded  the  ties  of  friend 
ship,  the  amenities  of  conventional  debate,  and  who  im 
pugned  the  judgment  or  good  faith  of  their  associates 
to  secure  these  amendments  can  never  be  honored  suf 
ficiently  by  a  grateful  people.  "Is  a  power  not  retained 
until  it  is  given  away?"  asked  Marshall.  "Why  not  say 
so?"  retorted  Patrick  Henry;  "Is  it  because  it  will 
consume  too  much  paper?  *  *  *  Nations  who  have 

93 


IMPLIED    POWERS    AND    IMPERIALISM. 

trusted  to  logical  deductions  have  lost  their  liberty.  * 
*  *  I  see  the  awful  immensity  of  the  dangers  with 
which  it  (the  constitution)  is  pregnant.  I  see  it;  I 
feel  it!"  A  fearful  storm  broke  as  Mr.  Henry  was 
concluding,  driving  the  convention  into  a  panic.  It 
was  his  last  speech.  Nevertheless  the  work  had  been 
done.  The  timorous,  the  trusting,  the  indifferent,  the 
sophists,  the  monocrats  were  overridden.  On  March 
4,  1789,  the  first  day  of  the  new  government,  Congress 
passed  a  resolution  which  among  other  things  con 
tained  this  language: 

"The  conventions  of  a  number  of  the  states  having 
at  the  time  of  their  adopting  the  constitution  expressed 
a  desire  in  order  to  prevent  misconstruction  and  abuse 
of  its  powers,  that  further  declaratory  and  restrictive 
clauses  should  be  added ;  and  as  extending  the  ground 
of  public  confidence  in  the  government  will  best  insure 
the  beneficent  ends  of  its  institutions,"  it  was  resolved 
that  among  others  these  two  amendments  be  proposed 
to  the  legislatures  of  the  states : 

"The  enumeration  in  the  constitution  of  certain 
rights  shall  not  be  construed  to  deny  or  disparage 
others  retained  by  the  people." 

"The  powers  not  delegated,  to  the  United  States  by 
the  constitution,  nor  prohibited  by  it,  to  the  states  are 
reserved  to  the  states  respectively  or  to  the  people." 

Thus  the  character  of  the  government  was  not  left  to 
be  ascertained  by  logical  deduction.  Its  character 
was  stamped  in  plain  language  upon  the  constitution 
of  the  government,  and  nothing  could  have  changed 
it  except  wilful  violation  of  the  instrument. 

The  subjects  upon  which  the  doctrine  of  implied 

94 


IMPLIED    POWERS    AND    IMPERIALISM. 

powers  was  first  invoked,  namely,  the  protective  tariff, 
and  a  United  States  bank,  have  been  obscured  by  the 
graver  questions  of  colonialism  and  militarism.  But 
as  the  reasoning  which  was  used  to  support  the  tariff 
and  the  bank  is  the  same  which  was  used  to  support 
colonialism  and  will  be  used  to  further  revolutionize 
the  form  of  the  government,  an  examination  of  its 
futile  sophistry  cannot  be  out  of  place. 

If  the  constitution  as  proposed  had  contained  a 
clause  empowering  congress  to  grant  charters  of  incor 
poration  no  question  could  ever  have  been  raised  to  the 
bank  except  one  of  expediency.  Madison,  as  shown, 
seemed  to  think  it  a  proper  power  for  congress  to  pos 
sess.  Objections  might  have  been  made  afterwards  to 
the  propriety  of  a  banking  corporation  chartered  by 
congress.  Some  might  have  thought  state  banks  suf 
ficient.  But  if  the  constitution  enumerated  the  power 
its  exercise  would  have  been  like  that  of  the  power  to 
pass  general  bankruptcy  laws,  sometimes  to  be  availed 
of  and  at  other  times  to  be  relinquished  to  the  states. 

It  is  past  all  doubt,  however,  that  the  framers  of  the 
constitution  were  exceedingly  apprehensive  of  corpor 
ations  ;  and  the  danger  suggested  to  their  minds  in  the 
concrete  was  commercial  monopolies,  such  as  the  East 
India  Company  of  England,  which  was  to  them  what 
the  trusts  are  to  us  to-day.  Monopolies  of  one  kind  or 
another,  but  all  relating  to  commerce,  had  always 
afflicted  England,  as  well  as  other  countries.  And 
this  they  no  doubt  sought  to  forestall  as  to  America. 
Besides  they  could  see  as  clearly  as  we  can  now  that 
national  corporations  would  look  to  their  creator  for 
protection  and  redress;  they  would  proceed  from  the 

95 


IMPLIED    POWERS    AND    IMPERIALISM. 

general  government,  but  would  roam  at  will  through 
the  states.  They  might  be  even  banking  corporations 
and  as  shown  anything  in  the  constitution  squinting 
towards  a  bank  suggested  defeat  in  its  adoption  by 
New  York  and  Pennsylvania.  They  would  have  lit 
tle,  perhaps  nothing,  to  ask  from  the  states;  at  least 
the  question  was  so  doubtful  that  those  who  framed 
the  constitution  declined  to  incur  any  risk  on  the  sub 
ject.  Besides  the  abstract  right  of  local  control  was 
a  touchstone  in  determining  every  grant  of  power 
which  the  constitution  contained.  So  much  power  as 
was  necessary  to  accomplish  national  purposes  was 
intended  to  be  given  away;  and  all  in  excess  of  that 
was  to  be  retained.  It  was  perfectly  obvious  also  that 
a  corporation  involved  some  form  of  special  privilege, 
either  by  way  of  exceptions  to  the  person  interested, 
or  by  way  of  centralized  power  for  corporate  purposes. 
What  sort  of  bodies  would  emanate  from  the  general 
government  under  such  a  constitutional  power? 
They  could  foresee  great  trading  companies  and  great 
banks.  The  right  to  charter  carries  with  it  the  right 
to  grant  privileges  and  franchises.  And  what  state 
could  protect  itself  against  such  an  incorporeal  creature 
when  no  state  could  control  the  power  which  gave  it 
existence?  Hence,  as  already  shown,  congress  was 
denied  the  power  to  charter  companies. 

As  congress  possesses  definite  powers  expressed 
with  rhetorical  precision,  the  creation  of  a  corporation 
not  only  must  raise  the  question  of  the  expediency  and 
justice  of  the  particular  act;  it  must  also  lead  men  to 
inquire  what  limit  can  be  set  to  congressional  action. 
If  the  constitution  can  be  broken  down  for  a  good  pur- 

96 


IMPLIED    POWERS    AND    IMPERIALISM. 

pose  it  can  be  broken  down  for  a  bad  purpose.  And 
whether  the  purpose  be  good  or  bad,  the  methods 
essential  to  employ  in  levelling  the  constitutional  bar 
riers  are  among  the  most  corrupt  as  they  are  the  most 
dangerous  that  ingenious  lawlessness  can  devise.  To 
say,  for  instance,  that  congress  can  constitutionally 
impose  a  protective  tariff  under  the  general  power  "to 
promote  the  general  welfare"  or  that  it  may  incorpor 
ate  a  bank  under  the  general  clause  empowering  con 
gress  "to  lay  and  collect  taxes,"  because  a  bank  may 
by  possibility  through  its  functions  of  deposit  and 
transmission  facilitate  the  collection  of  taxes,  is  a  form 
of  illogic,  the  danger  of  which  cannot  be  estimated. 
Joseph  Story,  in  writing  upon  the  protective  tariff, 
had  occasion  to  advert  to  the  pernicious  subtleties  with 
which  these  arguments  are  clothed.  "The  violation," 
wrote  he,  "consists  in  using  a  power  granted  for  one 
object  to  advance  another,  and  that  by  a  sacrifice  of  the 
original  object.  It  is,  in  a  word,  a  violent  perversion, 
the  most  dangerous  of  all,  because  the  most  insidious 
and  difficult  to  resist." 

In  August  of  1790  congress  called  upon  Hamilton 
as  Secretary  of  the  Treasury  to  report  further  provis 
ion  for  establishing  the  public  credit.  On  December 
13,  1790,  Hamilton  responded  by  furnishing  to  congress 
his  first  report  on  a  national  bank.  This  report  need 
not  engage  our  attention  because  it  related  to  the 
expediency  of  such  an  institution  and  the  details  of 
its  formation.  In  conformity  with  the  report  the  legis 
lative  bill  of  creation  was  formulated  in  congress  and 
provoked  instant  and  bitter  hostility. 

We  have  already  seen  that  Madison  was  not  opposed 

97 


IMPLIED    POWERS    AND    IMPERIALISM. 

to  corporations  of  themselves,  but  on  the  contrary 
thought  congress  might  have  the  power  to  charter 
them.  But  when  the  convention  overruled  him  and  the 
constitution  went  into  force  devoid  of  any  such  powers 
Madison  evinced  the  courage  and  good  faith  to  stand 
by  the  constitution  as  it  was  adopted.  The  congress 
ional  debates  disclose  that  on  February  2,  1791,  Madi 
son  made  a  speech  on  the  bank  bill  in  opposition  to  it. 
"He  then  expressly  denied  the  power  of  congress  to 
establish  banks.  And  this  he  said  was  not  a  novel 
opinion;  he  had  long  entertained  it.  All  power,  he 
said,  had  its  limits;  those  of  the  general  government 
were  ceded  from  the  mass  of  general  power  inherent 
in  the  people,  and  were  consequently  confined  within 
the  limits  fixed  by  their  act  of  cession." 

Hamilton's  elaborate  argument  contained  in  his 
report  to  congress  in  which  he  set  out  the  constitutional 
provisions  and  deductions  supposed  to  authorize  the 
chartering  of  the  bank  is  an  adroit  piece  of  fallacious 
reasoning.  Thus  his  first  proposition  involves  the 
fallacy  of  undistributed  middle.  It  is  this :  that  the 
United  States  are  sovereign  and  as  all  sovereign 
nations  can  incorporate  companies  the  United  States  as 
a  sovereign  nation  can  incorporate  a  bank.  The  major 
term  here  is:  the  United  States  are  a  sovereign  nation; 
and  the  minor  term  is :  a  sovereign  nation  may  incor 
porate  a  bank ;  and  the  conclusion  is :  the  United  States 
may  incorporate  a  bank.  But  the  minor  premise  which 
declares  that  a  sovereign  nation  may  incorporate  a 
bank  means  a  nation  which  is  sovereign  as  to  all  sub 
jects,  while  the  major  premise  can  only  mean  that  the 
United  States  are  sovereign  with  respect  to  some  sub- 

98 


IMPLIED  POWERS  AND  IMPERIALISM. 

jects,  that  is,  it  can  exercise  only  a  limited  amount  of 
sovereignty.  Thus  the  fallacy  consists  in  using  the 
words  "sovereign  nation"  and  "United  States"  as  equiv 
alent  terms.  There  is  a  play  upon  words  using  the 
terms  first  in  one  sense  and  then  secondly  in  another. 
For  the  United  States,  while  among  the  sovereign  na 
tions,  e.  g.,  exercising  sovereign  functions  for  the  peo 
ple — and  this  is  all  the  major  premise  means — do  not 
partake  of  all  the  attributes  of  sovereignty  which  those 
nations  possess  of  which  as  a  class  the  United  States 
are  a  member;  nor  yet  of  those  attributes  by  which 
banks  may  be  chartered.  Sovereignty  may  be  limited 
or  plenary.  Russia  is  a  sovereignty  in  which  the  Czar  is 
the  source  of  law  bound  by  no  limitation  whatever; 
England  is  a  sovereignty  bound  by  a  vague  consti 
tution  known  as  the  ethical  law ;  Switzerland  is  a  sov 
ereignty  bound  by  a  written  constitution  of  the  utmost 
strictness.  Therefore,  although  all  are  sovereign,  some 
things  can  be  predicated  of  Russia  that  cannot  be  pred 
icated  of  England.  Some  things  are  possible  to  Eng 
land  which  are  impossible  to  Switzerland.  As  Mr. 
Lawrence  points  out  in  his  essays :  "All  sovereign  states 
are  equal  before  the  law,  although  some  may  be  more 
powerful  and  influential  than  others."  Any  state  is 
sovereign  which  is  self-existent,  which  commands 
authority  in  civil  society,  which  directs  its  citizens  and 
moulds  its  institutions  and  which  is  a  member  of  the 
family  of  nations.  But  it  is  a  clear  fallacy  to  use  the 
term  sovereignty  in  connection  with  those  nations 
which  have  all  power  on  all  subjects  and  then  use  it  in 
application  to  a  nation  which  by  its  organic  law  has 
all  power  on  a  few  subjects,  and  those  to  be  constitu- 

99 


IMPLIED  POWERS  AND  IMPERIALISM. 

tionally  exercised,  and  no  power  whatever  on  a  vast 
number  of  subjects. 

Hamilton  started  out  with  this  remarkable  propo 
sition  that  the  definition  of  government,  and  the  defini 
tion  necessary  to  be  used  for  the  United  States  "essen 
tial  to  every  step  of  its  progress  is  that  it  is  sovereign." 
Government  may  be  an  entity  produced  by  compact; 
but  that  the  definition  of  government  is  that  it  is  sov 
ereign  is  certainly  novel.  It  would  be  just  as  scientific 
to  say  that  the  definition  of  government  is  that  it  is 
a  democracy  or  an  oligarchy.  Sovereignty  is  an  attri 
bute  or  a  quality,  and  does  not  comprehend  the  thing 
known  as  government.  And  if  Hamilton  meant  to 
say  that  the  United  States  were  sovereign  as  much 
as  any  nation,  he  knew  that  the  definition,  was  unten 
able,  because  he  knew  that  no  government  is  sover 
eign  in  the  sense  in  which  he  used  the  term  which  is 
limited  in  its  operation  by  its  charter  of  creation  pro 
ceeding  from  its  creators  and  enumerating  its  powers 
and  limitations.  While  all  nations  possess  sovereign 
powers,  while  all  are  on  an  equality  with  each  other 
before  the  law  of  nations,  they  are  sovereign  in  differ 
ent  degrees,  in  the  same  manner  that  all  men  possess 
strength,  but  are  not  all  equally  strong.  And  while 
Hamilton  was  reasoning  from  analogy  it  was  necessary 
for  him  to  keep  in  mind  the  principle  that  the  United 
States  might  resemble  all  other  nations  in  the  quality 
of  sovereignty  without  at  all  resembling  them  in  the 
quantity  of  sovereignty.  Analogy  does  not  imply  a 
resemblance  of  one  thing  to  another,  but  only  the 
resemblance  of  relations.  Thus  the  Czar  of  Russia 
and  the  President  of  the  United  States  are  both  execu- 

100 


IMPLIED  POWERS  AND  IMPERIALISM. 

t 

tive  officers,  but  it  by  no  means  follows  that  because 
they  resemble  each  other  in  being  executive  officers 
that  there  is  a  resemblance  between  the  things  theirir 
selves.  For  instance,  who  would  pretend  that  the 
president  is  an  executive  and  can  make  a  law  because 
the  Czar  is  an  executive  and  can  make  a  law  ? 

Hence  Hamilton's  next  premise  that  every  power 
vested  in  every  government  is  sovereign  is  a  non 
sequitur,  because  it  might  be  admitted  without  con 
ceding  that  the  United  States  are  sovereign  in  the 
sense  in  which  he  used  the  term.  In  other  words,  the 
United  States  might  have  sovereign  powers  without 
the  United  States  being  a  sovereign  power  in  the  sense 
that  Russia  is  a  sovereign  power.  Then  as  a  conclusion 
he  insisted  that  the  term  sovereign  included  a  right  to 
employ  all  the  means  requisite  and  fairly  applicable 
to  the  attainments  of  the  ends  of  such  power.  Given 
a  sovereign  power  the  designated  means  could  be  used 
to  attain  the  ends  of  such  power.  To  make  his  argu 
ment  more  concrete,  the  constitution  empowers  con 
gress  "to  provide  and  maintain  a  navy."  That  being 
a  sovereign  power,  not  because  the  constitution  vests 
the  power,  but  because  "every  power  vested  in  the  gov 
ernment  is  sovereign,"  as  he  argued,  any  means 
"requisite  and  fairly  applicable"  might  be  used  to 
attain  it,  while  the  constitution  says  that  the  means 
must  be  "necessary  and  proper."  He  simply  ignored 
the  language  of  the  constitution  and  asserted  that 
those  means  could  be  used  which  the  constitution  does 
not  permit.  It  was  incumbent  upon  Hamilton  to  prove 
that  the  United  States  had  the  particular  power  to 
incorporate  a  bank,  whereas,  his  deduction  based  upon 

101 


IMPLIED  POWERS  AND  IMPERIALISM. 

% 

the  premise  that  any  sovereign  nation  could  incorpor 
ate  a  bank  contained  a  formal  fallacy,  because  his 
terms  were  not  distributed  so  as  to  make  that  capable 
of  being  affirmed  of  the  United  States  which  he 
affirmed  of  any  sovereign  nation. 

To  what  point  now  does  Hamilton's  argument  con 
duct  us?  First,  that  the  definition  of  every  govern 
ment  is  that  it  is  sovereign;  second,  every  power 
vested  in  every  government  is  sovereign;  third,  the 
term  sovereign  includes  the  right  to  employ  all  the 
means  requisite  and  fairly  applicable  to  the  attainment 
of  the  ends  of  such  power. 

It  would  seem  that  if  every  government  is  sovereign 
it  is  mere  tautology  calculated  to  confuse  the  subject 
to  say  that  every  power  vested  in  a  sovereign  govern 
ment  is  sovereign.  It  is  not  necessary  to  predicate 
of  a  sovereign  government  that  its  powers  are  sover 
eign.  If  the  government  is  sovereign  it  is  either  so  with 
reference  to  a  few  subjects  or  as  to  all  subjects.  Which 
sort  of  sovereignty  do  the  United  States  possess? 
If  they  have  sovereignty  only  as  to  a  few  subjects,  the 
particular  legislation  must  come  within  the  scope  of  the 
subjects;  if  they  have  sovereignty  as  to  all  subjects 
the  argument  is  at  once  closed  and  elaborate  meta 
physics  is  unnecessary  to  establish  that  which  every 
man  of  sound  mind  must  perceive  to  be  within  the 
principle  of  inclusion.  If  congress  is  an  English  par 
liament,  holding  within  itself  all  power  because  in 
theory  all  the  people  of  the  nation  are  in  the  chamber 
where  it  sits,  the  incorporation  of  a  bank  is  but  a  trifl 
ing  exercise  of  the  plenary  commission.  If  congress 
is  a  body  representing  the  people  only  so  far  as  the 

102 


IMPLIED  POWERS  AND  IMPERIALISM. 

constitution  defines  and  permits,  the  incorporation  of 
a  bank  must  be  brought  within  the  scope  of  the  con 
stitution.  The  sovereignty  of  the  United  States  has 
nothing  to  do  with  the  question,  except  in  so  far  as 
sovereignty  has  been  granted  and  that  must  include 
the  power  necessary  to  use. 

But  Hamilton's  three  terms  did  not  exhaust  his 
doubts  and  scruples.  He  conceded  that  all  means 
requisite  and  fairly  applicable  could  be  used  which 

(a)  Are  not  precluded  by  restrictions  and  excep 
tions  specified  in  the  constitution. 

(b)  Not  immoral. 

(c)  Not  contrary  to  the  essential  ends  of  political 
society. 

Why  make  these  exceptions?  They  convert  the 
whole  argument  into  a  sophistical  jumble.  If  he  had 
adhered  to  his  original  terms  and  predicated  sover 
eignty  of  the  United  States  and  then  predicated  of  that 
sovereignty  every  attribute  possessed  by  any  nation 
he  might  have  had  a  homogeneous  argument.  If,  on 
the  other  hand,  he  wanted  to  make  a  constitutional 
argument,  he  was  familiar  enough  with  the  subject 
from  personal  contact  to  have  interpreted  it  along  the 
line  necessary  to  its  perversion.  But  in  welding  the 
two  arguments  together  he  produced  a  result  which 
dissolves  under  analysis. 

His  first  qualification  that  any  means  may  be  used, 
not  precluded  by  restrictions  and  exceptions  in  the 
constitution  is  a  baseless  assumption,  which  has  been 
repudiated  by  every  constitutional  interpreter  of  any 
note.  We  have  already  shown  that  several  of  the 
states  in  their  instruments  of  ratification  requested  an 

103 


IMPLIED  POWERS  AND  IMPERIALISM. 

amendment  in  the  constitution  which  should  declare 
that  all  powers  not  delegated  by  the  states  or  the  peo 
ple  were  reserved.  Hamilton  was  a  member  of  the 
New  York  convention  and  that  state  demanded  the 
amendment.  Marshall  was  a  member  of  the  Virginia 
convention  and  Virginia  demanded  the  amendment. 
Massachusetts,  New  Hampshire,  Rhode  Island  and 
South  Carolina  demanded  the  amendment.  And  the 
amendment  was  proposed  by  the  first  congress  and 
afterwards  adopted  by  all  the  states  in  which  it  was 
declared  that  "the  powers  not  delegated  to  the  United 
States  by  the  constitution  nor  prohibited  by  it  to  the 
states  are  reserved  to  the  states  respectively  or  to  the 
people." 

This  amendment  covered  in  terms  the  doctrine  of 
enumeration;  for  as  Lord  Bacon  said  enumeration 
weakens  law  in  cases  not  enumerated.  Under  the 
Baconian  rule,  if  a  power  was  not  mentioned  among 
a  list  of  powers  enumerated,  it  was  excluded  as  a  mat 
ter  of  construction;  which  does  not  take  into  account 
the  fact  that  the  constitution  proceeded  from  the  peo 
ple,  and  as  Marshall  said  in  the  Virginia  convention: 
"Does  not  a  power  remain  until  it  is  given  away?" 

Hamilton's  dictum  that  all  means  could  be  used  to  an 
end  not  precluded  by  restrictions  and  exceptions  was 
a  statement  of  revolution  and  nothing  less.  It  fol 
lowed  from  that  that  congress  was  a  British  parlia 
ment,  except  where  it  was  restrained  by  exceptions 
and  restrictions.  For,  while  the  British  parliament  is 
the  sole  repository  of  power,  the  English  constitution, 
consisting  of  the  ethical  law,  operates  as  a  restrictive 
influence  upon  legislative  action.  No  one  was  ever 

104 


IMPLIED  POWERS  AND  IMPERIALISM. 

bold  enough  to  affirm  this  proposition  since  Hamilton's 
day  until  the  author  of  the  Insular  decisions  revamped 
it.  But  Hamilton  further  argued  that  in  spite  of  sov 
ereignty  and  sovereign  powers,  that  no  means  could 
be  used  which  were  immoral.  It  is  very  difficult  to 
understand  why  immoral  means  could  not  be  used. 
The  constitution  permits  "necessary  and  proper" 
means,  and  many  means  might  be  necessary  to  sov 
ereign  power  which  would  be  at  the  same  time  im 
moral.  Sovereign  nations  habitually  use  the  most 
immoral  means  for  ends  alleged  to  be  necessary  and 
moral,  and  for  ends  understood  to  be  immoral.  Mr. 
Story  defined  sovereignty  to  be  "supreme,  absolute, 
uncontrollable  power,  the  jus  summi  imperil,  the  abso 
lute  right  to  govern.'*  So  that,  if  the  right  is  based 
upon  sovereignty  its  morality  need  not  be  urged.  It 
is  inconsequential  and  beside  the'  point. 

Let  each  man  bring  it  home  to  himself  acting  as 
a  champion  for  a  commercial  monopoly,  and  on  the 
question  of  its  lawful  creation,  imagine  himself  vol 
unteering  the  question  of  its  morality.  It  must  be 
conceded  that  Hamilton's  audacity  was  satanic.  For 
in  his  report  on  the  bank  he  had  provided  "No  similar 
institution  shall  be  established  by  any  future  act  of  the 
United  States,  during  the  continuance  of  the  one  here 
by  proposed  to  be  established."  This  he  knew ;  this  he 
had  written.  And  he  knew  the  horror  with  which  the 
people  of  the  day  regarded  monopolies,  and  that  his 
own  state  of  New  York  in  its  convention  of  adoption 
of  which  he  was  a  member,  had  recommended  as  an 
amendment  to  the  constitution  "that  congress  do  not 
grant  monopolies."  The  amendment  was  not  proposed 

105 


IMPLIED  POWERS  AND  IMPERIALISM. 

by  congress  because  the  tenth  and  eleventh  amend 
ments  covered  that  point,  and  were  understood  to  cover 
it. 

But  in  spite  of  the  sovereignty  of  the  United  States 
if  congress  could  adopt  no  immoral  means  to  an  end, 
how  could  the  bank  be  justified?  It  was  a  monopoly 
and  intended  by  Hamilton  to  be  such.  A  monopoly 
is  essentially  immoral.  It  strikes  down  equal  rights; 
it  grants  special  privileges;  it  destroys  instead  of  pre 
serving  the  "blessings  of  liberty;"  it  extorts  tribute 
without  any  equivalent  in  return;  it  exacts  servitude, 
and  it  breeds  hatred  and  disorder  in  the  state.  Such 
has  been  the  history  of  monopolies;  while  their  evil 
influences  have  so  menaced  the  absolutism  of  thrones 
that  despots  have  been  forced  to  control  them  and  in 
some  instances  to  eradicate  them.  Hamilton's  excep 
tion  based  upon  the  morality  of  means,  related  as  it  was 
to  the  consideration  of  a  commercial  monopoly,  was 
a  piece  of  sardonic  irony  which  entitles  him  to  a  place 
beside  Richelieu  and  Lord  Bacon. 

Hamilton's  third  exception  to  the  use  of  all  means 
excludes  all  those  which  might  be  contrary  to  the 
essential  ends  of  political  society.  He  does  not  ex 
plain  what  are  the  essential  ends  of  political  society. 
But  if  a  monopoly  was  not  in  his  judgment  contrary 
to  those  essential  ends,  it  is  possible  that  in  his  judg 
ment  many  other  institutions,  such  as  nobility,  mort 
main  or  state  religion  might  not  be  contrary  to  such 
ends.  Whatever  the  ends  of  political  society  are  in 
the  abstract  or  in  general,  the  ends  of  the  political  so 
ciety  known  as  the  United  States  are  set  forth  in  the 
preamble  of  their  constitution.  The  government  was  or- 

106 


IMPLIED  POWERS  AND  IMPERIALISM. 

dained  "to  establish  justice,"  and  if  so  not  to  deny  it 
by  the  creation  of  monopolies:  "to  insure  domestic 
tranquillity,"  and  therefore  not  to  foment  hatred  and 
discord  among  the  people  by  the  abuse  of  government 
in  the  enactment  of  partial  and  oppressive  laws;  "to 
promote  the  general  welfare,"  and,  therefore,  not  to 
promote  the  particular  welfare  of  a  few  at  the  expense 
of  the  many;  "to  secure  the  blessings  of  liberty  to 
ourselves  and  our  posterity/'  and,  therefore,  not  to 
detract  from  the  rights  of  some  to  add  to  the  advant 
ages  of  others  and  thereby  to  invade  the  liberty  de 
clared  to  be  an  object  of  regard. 

Hamilton  then  proceeded  to  other  enunciations.  If, 
he  argued,  the  United  States  are  not  less  sovereign, 
as  to  "proper  objects,"  because  the  states  are  sover 
eign  as  to  their  "proper  objects ;"  if  laws  made  in  "pur 
suance  of  the  constitution,"  are  the  supreme  law  of 
the  land — then  "the  power  which  can  create  the  su 
preme  law  of  the  land  in  any  case,  is  doubtless  sover 
eign  as  to  such  case."  How  does  this  follow?  He  has  af 
firmed  that  the  United  States  are  sovereign  as  to  their 
"proper  objects;"  then  that  laws  made  in  "pursuance 
of  the  constitution"  are  the  supreme  law  of  the  land. 
Then  the  ground  is  shifted.  The  succeeding  proposi 
tion  is  that  "the  power"  can  create  the  supreme  law 
"in  any  case,"  whether  "in  pursuance  of  the  constitu 
tion"  or  not,  whether  as  to  "proper  objects"  or  not. 
And  therefore,  the  power  which  can  create  the  su 
preme  law  in  "any  case"  is  obviously  sovereign  "as  to 
such  case."  It  is  more;  it  is  sovereign  as  to  every 
case!  And  what  is  in  fact  proven  with  respect  to  the 
United  States? 

107 


IMPLIED  POWERS  AND  IMPERIALISM. 

From  so  many  postulates  he  deduced  the  following : 
"This  general  and  indisputable  principle  (e.  g.,  creat 
ing  the  supreme  law  of  the  land)  puts  at  once  an  end 
to  the  abstract  question  whether  the  United  States 
have  power  to  erect  a  corporation."  For  "it  is  unques 
tionably  incident  to  sovereign  power  to  erect  corpora 
tions  and  consequently  to  that  of  the  United  States  in 
relation  to  the  objects  entrusted  to  the  management 
of  the  government." 

Creating  the  supreme  law  of  the  land  in  every  case, 
or  to  be  more  specific,  creating  a  corporation  as  inci 
dent  to  the  power  of  creating  the  supreme  law  of  the 
land,  is  a  different  thing  from  passing  a  law  in  pur 
suance  of  the  constitution.  For  if  it  be  not  in  pursu 
ance  of  the  constitution,  it  is  not  the  supreme  law  of 
the  land;  it  is  not  law  at  all.  How,  then,  is  the  ques 
tion  of  creating  a  corporation  put  at  rest  by  asserting 
that  laws  passed  in  pursuance  of  the  constitution  are 
supreme?  Here  is  a  clear  petitio  principii.  The  main 
thing  remains  to  be  proven,  namely,  that  a  law  charter 
ing  a  bank  is  in  pursuance  of  the  constitution  and 
therefore  is  a  law,  and  as  to  all  the  sovereignties  known 
as  the  States  is  supreme.  Nor  is  the  power  to  charter 
corporations  an  incident  of  sovereignty,  except  as  the 
term  sovereignty  means  supreme,  absolute,  uncontroll 
able  power,  which  the  United  States  were  not  alleged 
to  possess.  Such  power  would  be  an  incident,  that  is 
to  say,  inhering  in  or  attached  to  an  uncontrollable, 
absolute  power.  But  when  uncontrollable,  absolute 
power  is  denied  by  express  constitutional  provisions 
it  is  incumbent  upon  him  who  has  the  affirmative  to 
prove  that  the  particular  incidents  of  sovereignty  are 

108 


IMPLIED  POWERS  AND  IMPERIALISM. 

attached   to   some    sovereign    agency   or   commission 
expressed  in  the  constitution. 

Hamilton's  argument  then  reduces  itself  to  these 
assertions : 

(a)  Every  government  is  sovereign ; 

(b)  Every  power  vested  in  a  sovereign  government 
is  sovereign ; 

(c)  A    government    to    effectuate    any    sovereign 
power  may  use  any  means ; 

(1)  Not  precluded  or  excepted; 

(2)  Not  immoral; 

(3)  Not  contrary  to  the  essential  ends  of  political 
society ; 

(d)  The   United    States    are    sovereign    because 
the  constitution  and  laws  passed  in  pursuance  thereof 
are  supreme; 

(e)  Therefore    the    United     States   may   charter 
corporations ; 

This  is  the  lauded  foundation  upon  which  American 
absolutism  rests,  for  it  is  absolutism  and  nothing  else. 
It  is  a  sheer  waste  of  time  to  argue  that  a  law  is  not 
necessary  or  proper,  because  if  the  republic  was  con 
structed  to  rest  upon  a  question  of  etymology  it  was 
doomed  from  the  day  of  the  adoption  of  the  constitu 
tion.  The  question  of  the  bank  was  argued  at  length 
upon  the  definition  of  the  word  "necessary,"  and  Hamil 
ton,  with  labored  logic,  connected  the  necessity  of  the 
bank  with  the  express  power  of  borrowing  money,  rais 
ing  revenue  and  equipping  armies.  The  word  necessary 
imports  inevitability  both  in  its  radical  and  its  pop 
ular  significance.  But  the  word  has  synonyms  of  lesser 
shades  of  meaning  which  Hamilton  contended  should 

109 


IMPLIED  POWERS  AND  IMPERIALISM. 

be  used  in  construing  the  "sweeping  clause."  On  this 
branch  of  the  question  he  sophisticated  the  constitu 
tion  to  empower  congress  to  incorporate  the  bank. 
Not  satisfied  wholly  with  his  own  argument  for  this 
source  of  power,  nor  for  the  source  of  the  power  in  the 
sovereignty  of  the  United  States,  he  dwelt  upon  the 
territorial  clause  wherein  the  congress  is  given  power 
to  make  all  needful  rules  and  regulations  for  the  ter 
ritory  or  other  property  of  the  United  States  which 
he  said  included  the  power  to  erect  municipal  or  public 
corporations.  Therefore,  he  said,  the  power  to  erect 
a  corporation  of  the  highest  nature  was  granted  by  the 
constitution;  and  a  bank  might  be  incorporated  under 
the  clause  giving  the  congress  power  to  make  all  need 
ful  rules  and  regulations  respecting  the  territory  or 
other  property  of  the  United  States.  Because,  he 
argued,  money  is  property  and  "therefore  the  money  to 
be  raised  by  taxes  as  well  as  any  other  personal  prop 
erty  must  be  supposed  to  come  within  the  meaning 
as  they  certainly  do  within  the  letter  of  authority  to 
make  all  needful  rules  and  regulations  concerning  the 
property  of  the  United  States."  And  hence  the  bank 
might  be  an  institution  connected  with  the  property 
of  the  United  States  which  they  are  empowered  to  con 
trol  by  all  needful  rules  and  regulations.  This  branch 
of  the  argument  does  not  rise  to  the  dignity  of  a 
question,  nor  ought  serious  discussion  to  be  provoked 
by  the  claim  that  a  money  monopoly  is  necessary  to 
the  execution  of  any  enumerated  power  of  congress. 

But  because  the  argument  upon  the  sovereignty  of 
the  United  States  is  the  real  strength  of  imperialism 
and  of  the  rapidly  centralizing  tendencies  of  the  gov- 

110 


IMPLIED  POWERS  AND  IMPERIALISM. 

ernment  the  specious  bubble  should  be  exploded.  That 
as  an  implication  of  sovereignty  the  United  States 
may  adopt  colonialism  and  as  a  corollary  maintain 
under  the  control  of  the  president  an  army  in  distant 
islands  or  in  any  part  of  the  world  is  one  of  the  flim 
siest  political  pretenses  ever  made.  What  is  the  mean 
ing  of  the  historic  and  settled  principle  that  the  federal 
constitution  is  a  grant  of  power?  Manifestly  that  a 
residue  remains  in  the  grantor  and  that  the  power  not 
granted  remains  with  the  sovereignty  which  made  the 
grant,  namely,  the  states  or  the  people  through  the 
states.  Or  what  is  meant  by  the  correlative  of  this 
principle  that  the  state  constitutions  are  a  limitation 
upon  power?  Manifestly  that  ultimate  sovereignty 
or  paramount  and  absolute  power  is  with  the  people 
who  are  the  source  of  all  authority  in  this  land.  For 
power  .here  proceeds  from  the  people  up,  and  not  as  in 
monarchies  from  the  sovereign  down.  Now  sup 
pose  neither  the  states  nor  the  people  want  a  policy 
pursued;  yet  what  can  prevent  it  if  the  United  States 
are  the  sovereign  power,  the  repository  of  sovereign 
power,  of  paramount  power,  and  their  officials  con 
strue  the  sovereign  power  to  the  support  of  the  unwel 
come  policy?  Is  it  any  answer  to  say  that  the  people 
at  the  polls  can  reject  or  confirm  the  policy?  No  man 
who  loves  or  understands  constitutional  government 
will  say  so.  Nor  can  it  be  maintained  for  a  moment 
that  sovereignty  is  in  the  United  States.  Chief  Justice 
Marshall  in  the  great  case  of  Gibbons  v.  Ogden  said: 
"It  has  been  said  that  they  (the  states  under  the  Con 
federacy)  were  sovereign,  were  completely  independ 
ent  and  were  connected  with  each  other  only  by  a 

in 


IMPLIED  POWERS  AND  IMPERIALISM. 

league.     This  is  true."     Now  when  the  constitution 
was  framed  they  withdrew  from  the  confederacy  and 
formed  "a  more  perfect  union"  under  the  constitution, 
as  its  preamble  declares.    But  while  they  gave  it  into 
the  hands  of  the  general  government  to  exercise  great 
sovereign  powers,  they  did  not  surrender  their  sover 
eignty,  nor  did  the  people  back  of  the  states  surrender 
to  any  entity  their  paramount  power.     As  laid  down 
by  Vattel  nothing  can  be  implied  to  increase  the  grant 
of  power  of  the  sovereign.    The  powers  granted  in  the 
constitution  to  the  United  States  are  incidents  of  sov 
ereignty,  e.  g.,  to  declare  war,  coin  money,  lay  taxes. 
But  as  the  great  constitutional  lawyers  of  the  past 
so  often  pointed  out  how  absurd  to  specify  and  grant 
these  incidents  of  sovereignty  if  sovereignty  itself  in 
its  entirety  was  by  the  constitution  transferred  from 
the  states  and  from  the  people,  and  at  once  by  the 
ratification  of  the  constitution  vested  in  the  general 
government  with  all  the  plenitude  of  its  power.    If  the 
United  States  are  sovereign,  as  the  imperialists  use  the- 
term,  how  is  the  constitution  a  grant  of  power;  why 
were  amendments  to  the  constitution  contemplated, 
and  why  should  they  be  ratified  by  three-fourths  of 
the  several  states?    How  can  this  monstrous  sophistry 
of   Hamilton,   grown   into  imperialism   itself,   cqrisist 
with  the  tenth  amendment  that  "powers  not  delegated 
to  the  United  States  by  the  constitution  nor  prohibited 
by  it  (the  constitution)  to  the  states  are  reserved  to 
the  states  respectively  or  to  the  people?"    Powers  of 
sovereignty  the  United  States  have  had  from  the  be 
ginning,  and  should  have  had;  but  they  never  had 
sovereignty,  because  it  was  never  granted  to  them, 

112 


IMPLIED  POWERS  AND  IMPERIALISM. 

and  at  the  time  of  the  adoption  of  the  constitution  it 
was  in  the  states  or  the  people  of  the  states,  as  we 
may  choose  to  view  the  question. 

The  doctrine  of  implied  powers  being  sophistical  in 
itself  conducts  to  still  more  startling  fallacies.  For 
instance,  it  is  an  incident  of  sovereignty  to  make  war, 
but  by  implication  do  the  United  States  possess  in  con 
nection  with  that  incident  of  sovereignty  the  power  of 
a  sovereign  nation  to  annex  distant  territory  and  over 
whelm  the  order  and  the  liberty  of  the  states  which 
granted  the  incident  of  sovereignty  to  make  war?  If  so 
constitutions  are  superfluous,  because  language  is  not 
exact  enough  to  express  the  limitations  intended  to  be 
imposed.  They  can  be  avoided  and  evaded  and  the 
whole  sovereignty  drawn  over  to  the  medium  of  sov 
ereignty  by  the  deductions  of  metaphysics.  How 
nearly  shall  be  realized  the  prophesy  of  George  Mason 
contained  in  the  objections  to  the  constitution  which 
he  submitted  to  the  Virginia  legislature?  In  explain 
ing  his  refusal  to  sign  the  constitution  he  said :  "The 
judiciary  of  the  United  States  is  so  constructed  and 
extended  as  to  absorb  and  destroy  the  judiciary  of  the 
several  states,  thereby  rendering  laws  as  tedious,  intri 
cate  and  expensive  and  justice  as  unattainable  by  a 
great  part  of  the  community  as  in  England;  and  en 
abling  the  rich  to  oppress  and  ruin  the  poor.  *  * 
This  government  will  commence  in  a  moderate  aris 
tocracy;  it  is  at  present  impossible  to  see  whether  it 
will  in  its  operations  produce  a  monarchy  or  a  corrupt, 
offensive  aristocracy.  It  will  most  probably  vibrate 
some  years  between  the  two  and  then  terminate  in 
the  one  or  the  other." 

113 


IMPLIED  POWERS  AND  IMPERIALISM. 

An  army  fighting  for  liberty  at  home,  and  an  army 
fighting  against  liberty  abroad  is  the  measure  of  con 
stitutional  progression  which  gives  truth  to  these 
words.  The  cautious  ninth  and  tenth  amendments 
have  turned  out  to  be  of  no  binding  consequence? 
For,  as  seen,  although  the  constitution  is  a  grant  of 
power;  although  enumeration  of  powers  shall  not  be 
construed  to  deny  or  disparage  those  retained  by  the 
people ;  although  powers  not  delegated  are  retained  by 
the  people — a  system  of  legal  sophistry,  devised  in 
large  part  by  Hamilton  and  perfected  by  his  followers, 
has  sufficed  to  incorporate  companies,  confer  special 
privileges  and  ingraft  the  very  substance  of  monarchy 
upon  the  republic  in  the  form  of  colonialism.  What 
could  the  general  government  have  done  in  addition 
if  the  people  in  the  states  had  surrendered  to  it  all 
power  whatsoever?  This  denouement  would  be  ridicu 
lous  if  the  ultimate  scene  already  foreshadowed  did 
not  give  promise  of  one  of  the  most  deplorable  declines 
recorded  in  history. 

This,  then,  is  the  foundation  upon  which  rests  the 
whole  superstructure  of  that  alleged  sovereignty  which 
never  existed  in  the  constitution.  As  it  was  cemented 
with  a  mixture  of  falsehood  and  fraud  it  is  doomed 
to  dissolve  in  the  process  of  time  which  eats  away  all 
that  is  unreal;  but  when  the  foundation  falls  will  not 
all  that  was  good  in  our  system  perish  with  all  of  this 
created  evil?  What  providence  will  reverse  the  uni 
versal  rule? 


114 


ELECT  THE  FEDERAL  JUDGES. 

One  of  the  great  political  parties  has  already  taken 
a  conventional  stand  in  favor  of  electing  senators  by 
a  direct  vote  of  the  people.  This  question  when  re 
cently  brought  to  an  acute  point  of  discussion  was  met 
by  Senator  Lodge  of  Massachusetts  by  an  astonishing 
objection.  It  was  that  the  election  of  senators  by  the 
people  would  destroy  the  constitutional  theory  of  sen 
ators  as  representing  states.  The  essence  of  his  objec 
tion,  if  he  were  correctly  reported,  consisted  in  regard 
ing  the  senators  as  "Ambassadors  of  the  states,"  which 
their  popular  election  would  un-character.  It  cannot 
be  perceived  how  the  manner  of  their  election  by  a 
state  would  make  them  less  the  representatives  of  the 
state  as  such.  But  this  objection  made  by  an  exponent 
of  the  school  which  has  taught  that  the  constitution 
was  the  product  of  the  people  of  America,  and  not  the 
people  of  the  states  of  America  seems  incongruous. 

A  reform  of  equal,  if  not  indeed  of  deeper  moment, 
is  the  election  of  the  members  of  the  Federal  judiciary 
for  terms  of  moderate  length.  The  reasons  which  were 
urged  in  favor  of  a  Federal  judiciary  appointed  for  life 
were  long  ago  discovered  to  be  pretentious  and  un 
sound.  The  Federal  courts  have  for  so  long  a  time  pur 
sued  a  course  of  systematic  usurpation  that  doubt  can 
no  longer  be  maintained  against  the  accumulating 


ELECT  THE  FEDERAL  JUDGES. 

proof  that  these  tribunals  are  today  among  the  greatest 
enemies  of  justice  and  liberty. 

Hamilton,  in  the  jSih  number  of  the  Federalist  made 
an  examination  of  the  constitutional  provision  for  the 
Federal  judiciary.  He  concluded  that  the  judiciary 
was  the  weakest  department  of  the  government  because 
it  held  neither  the  purse  nor  the  sword;  that  it  had 
neither  force  nor  will,  but  merely  judgment;  that  it 
could  never  attack  the  executive  or  legislative  branches 
of  the  government ;  that  the  general  liberty  of  the  peo 
ple  could  never  be  endangered  by  the  judiciary.  These 
are  very  sweeping  declarations,  which  their  author  was 
content  to  express  without  demonstration  of  any  sort. 
To  what  extent  need  they  be  respected?  The  Supreme 
Court  may  validate  or  invalidate  revenue  laws. 
Through  custom  and  according  to  the  suppositious 
logic  of  the  constitution,  as  maintained  by  Hamilton 
himself  in  the  Federalist,  the  Supreme  Court  has  the 
power  to  construe  the  constitution  with  reference  to 
any  particular  law,  and  to  hold  the  latter  void  if  repug 
nant  to  the  constitution.  But  whether  the  law  is  so 
repugnant  rests  in  the  judgment  of  the  Supreme  Court 
to  decide ;  and  therefore,  what  that  court  says  the  con 
stitution  imports  is  the  ultimate  and  unappealable 
formation  of  the  constitution  itself.  Construction, 
therefore,  of  the  constitution  relating  to  appropriations 
relates  to  the  purse  itself,  to  which  extent  the  court 
does  hold  the  purse.  While  the  court  has  altogether 
successfully  protected  what  Hamilton  called  the  prop 
erty  of  the  country.  The  inferior  Federal  courts  may, 
and  repeatedly  have,  done  the  same  thing.  And  this 
is  in  no  artificial  sense  a  holding  of  the  purse  also. 

116 


ELECT  THE  FEDERAL  JUDGES. 

The  legislative  and  executive  branches  of  the  gov 
ernment  are  attacked  when  the  court  overthrows  legis 
lation  which  those  branches  have  enacted.  Their 
powers  are  utterly  prostrated  when  they  can  no  longer 
perform  their  functions.  They  are  subdued  to  the 
"force  and  will"  of  another  mind  when  what  they 
choose  to  call  the  law  is  declared  by  the  Supreme 
Court  to  be  void  and  no  law.  The  general  liberty  of 
the  people  is  not  only  endangered  but  infringed  upon 
by  this  course;  and  as  historic  fact  this  has  occurred 
repeatedly.  A  system  which  begets  in  the  popular 
mind,  and  to  a  degree  in  the  legislative  mind,  the  idea 
that  a  judgment  of  the  Supreme  Court  between  private 
parties  is  a  rule  of  political  action  to  which  the  country 
must  settle  down  to  tolerate,  is  pernicious  beyond  ex 
pression.  So  much  nevertheless  for  theory  respecting 
the  character  of  these  courts.  It  is  proper  to  refer  to 
Hamilton's  arguments  in  the  Federalist  upon  these 
subjects  because  they  were  addressed  to  the  people 
of  the  United  States  at  a  time  when  grave  doubts  were 
entertained  of  certain  features  of  the  constitution 
which  these  arguments  had  a  tendency  to  quiet.  And 
because  since  his  day  nothing  further  of  moment  has 
been  advanced  in  favor  of  the  appointment  of  Federal 
judges  for  life. 

Experience  has  demonstrated  that  the  theory  is 
wrong.  The  Federal  courts  today  have  few  friends 
among  impartial  thinkers  familiar  with  their  prac 
tices;  and  abhorrence  of  them  as  the  merciless  and 
willing  tools  of  special  privilege  is  fast  gaining 
ground. 

Hamilton  thought  the  people  should  have  no  voice 

117 


ELECT  THE  FEDERAL  JUDGES. 

in  the  making  of  Federal  judges.  If  this  matter  should 
be  committed  to  the  people  "there  would  be  too  great 
a  disposition  to  consult  popularity,  to  justify  a  reli 
ance  that  nothing  would  be  consulted  but  the  consti 
tution  and  the  laws."  Let  us  see,  then,  what  power 
outside  of  people  can  create  these  judges.  The  presi 
dent,  according  to  the  original  theory,  was  to  be  elected 
by  electors,  the  latter  being  generally  chosen  by  the 
legislators.  Now  the  legislators  have  always  been 
chosen  by  popular  vote,  and  so  their  temper  and  char 
acter  depend  upon  the  people  from  whom  in  fact  they 
come.  The  electors  were  taken  from  the  body  of  the 
people  by  the  legislature,  and  these  chose  the  president. 
How  is  it  then  that  men  competent  to  choose  those 
upon  whose  choice  depends  the  president,  who  appoints 
the  judges,  cannot  directly  choose  the  judges  them 
selves?  In  the  choice  of  judges,  what  indeed  becomes 
of  those  select  bodies  known  as  the  legislatures  and 
the  electoral  college  which,  though  of  aristocratical 
standing,  for  the  purpose  of  selecting  the  executive, 
have  no  will  in  the  matter  of  selecting  the  judges?  As 
to  the  senators,  they  are  the  creatures  of  legislatures 
which  are  the  creatures  of  the  people.  It  is  a  fallacious 
doctrine  which  attributes  more  rightful  power  to 
agents  than  the  principals  are  alleged  themselves  to 
possess.  The  scheme  of  appointment  of  Federal  judges 
by  the  president  and  the  senate  is  conceived  in  dis 
trust  of  human  nature;  and  yet  neither  the  president 
nor  the  senate  is  distrusted  in  the  selection,  and  the 
judges  when  once  installed  are  trusted  to  the  utmost 
limit  upon  the  ground  that  they  need  not  reckon  with 
the  passions  of  the  populace.  The  Federal  courts  are 

118 


ELECT  THE  FEDERAL  JUDGES. 

the  fit  product  of  such  reasoning  as  this.  As  they 
are  placed  beyond  the  reach  of  the  people  they  may 
successfully  despise  the  wishes  of  the  people  both 
when  they  run  counter  to  and  when  they  run  parallel 
with  the  constitution  itself.  They  are  the  creatures  of 
plutocracy  and  with  few  exceptions  uniformly  obey  its 
mandates.  So  far  then  from  being  that  body  of  ideal 
independence  which  a  dissembling  doctrine  has  made 
them  out  they  have  been  slavishly  attentive  not  to 
popular  rights  but  to  special  privilege.  It  has  been 
said  that  these  courts  follow  the  election  returns,  and 
if  so  the  manner  of  their  appointment  and  the  tenure 
of  their  office  have  not  made  them  independent.  If 
so  they  do  sometimes  consult  popularity  instead  of 
the  constitution.  But  deeper  consideration  of  the 
question  will  show  that  they  do  not  always  bow  to  the 
paramount  party  and  that  their  apparent  regard  for 
the  popular  will  is  generally  a  regard  for  the  will  of 
plutocracy. 

The  judiciary  so  far  as  points  of  comparison  exist 
is  the  strongest  branch  of  the  government.  While 
the  legislative  power  is  in  abeyance  at  intervals  the 
judicial  power  never  sleeps.  It  continues  to  accumu 
late  the  lex  non  scripta,  by  applying  its  own  reason  to 
facts  as  they  come  up  and  by  filling  up  the  interstices 
of  the  constitution  with  cement  from  the  Bastile  and 
the  Tower.  It  may  furnish  laws  for  the  executive  to 
faithfully  execute  by  issuing  injunctions  which  the 
military  may  be  called  on  to  enforce.  Thus  the  judges 
in  no  unscientific  sense  make  the  law.  A  line  is  drawn 
between  making  and  interpreting  the  law;  and  while 
courts  may  not  make  the  law  they  declare  it.  But  be- 

119 


ELECT  THE  FEDERAL  JUDGES. 

fore  the  law  can  be  declared  it  must  be  ascertained, 
and  its  ascertainment  .involves  a  strong  admixture  of 
legislative  action.  Thus,  to  say  that  the  judicial  de 
partment  is  the  weakest  branch  of  the  government, 
that  it  only  interprets  the  law  and  does  not  make  the 
law,  is  a  plain  overlooking  of  practical  experience. 
That  the  judiciary  should  be  created  to  be  and  to 
remain  independent  is  well  enough.  But  to  make  the 
judges  independent  of  the  people  is  something  else. 
There  is  such  a  contrast  between  the  refined  idealism 
of  the  constitutional  construction  of  the  judiciary  and 
the  sordid  use  to  which  it  has  put  itself  that  the  sug 
gestion  is  inevitable  to  give  this  human  institution  a 
human  birth.  The  people  have  the  practical  and 
philosophic  right  to  directly  elect  Federal  judges,  be 
cause  they  interpret  and  practically  enact  a  large  body 
of  the  laws  which  determine  the  rights  and  remedies 
of  the  people.  The  world  has  grown  too  practical  to 
longer  believe  that  any  divinity  hedges  the  judicial 
department  of  either  the  state  or  the  Federal  govern 
ment.  We  are  too  far  distant  from  the  time  when 
judges  were  the  vicegerents  of  the  royal  personage  to 
be  much  affected  by  the  attempt  to  perpetuate  the 
atmosphere  of  royalty.  There  is  no  more  reason  for 
the  judiciary  to  be  independent  than  for  the  legislature 
or  the  executive  to  be  independent;  and  there  is  no 
more  reason  to  make  it  independent  by  appointing  the 
judges  for  life  than  to  make  the  executive  or  the  Con 
gress  independent  by  appointing  the  executive  or  the 
Congress  for  life.  The  three  departments  of  the  gov 
ernment  stand  on  a  precise  equality  with  reference  to 
the  end  to  be  attained,  and  the  means  to  attain  those 

120 


ELECT  THE  FEDERAL  JUDGES. 

ends.  The  end  of  legitimate  government  is7  the  estab 
lishment  of  justice.  In  the  last  analysis  this  depends 
upon  the  individual  moral  man.  The  fact  that  the 
man  is  independent  of  the  people  does  not  make  him 
moral.  If,  when  he  becomes  a  judge  he  is  moral  he 
may  become  unjust  by  insidious  influences  and  by  a 
sense  of  absolute  power,  which  make  resistance  to 
such  influences  unnecessary,  except  for  the  integrity 
of  his  own  mind,  an  ideal  not  always  strong  enough 
for  the  purpose.  The  fact,  however,  that  the  man  is 
made  a  judge  by  the  people  does  not  make  him  moral. 
In  the  latter  case,  though,  if  he  turns  out  to  be  an 
enemy  of  liberty,  the  people  have  the  remedy  of  put 
ting  him  out  of  power,  so  that  he  may  not  be  for  his 
whole  life  an  instrument  of  evil  and  tyranny.  An 
elective  judiciary  which  submits  to  popular  impulse 
(e.  g.,  which  in  doing  so  violates  the  law  of  justice)  is 
no  worse  than  a  president  or  Congress  which  does  so. 
The  results  are  no  more  disastrous.  Where  the  power 
is  in  the  people  to  speedily  correct  their  mistakes  they 
may  and  frequently  do  correct  them.  Where  mistakes 
are  made  by  an  absolute  department  of  the  govern 
ment  there  is  no  remedy  except  that  slow  reformation 
in  which  either  the  excitative  occasion  of  the  evil 
passes  away,  or  in  which  the  minds  of  the  wrong-doers 
become  amenable  to  better  influences  or  new  powers 
take  the  place  of  the  old.  The  truth  is,  however,  that 
so-called  popular  impulse  is  neither  so  frequent  nor 
so  dangerous  as  anti-republican  alarmists  have  made 
out.  It  is  not  so  much  to  be  feared  or  warded  against 
as  those  studied  and  incessant  machinations  done  in 
secret  against  justice  and  liberty  by  those  who  wish  an 

121 


ELECT  THE  FEDERAL  JUDGES. 

absolute  judiciary  to  keep  down  great  reactions  of  the 
people  produced  by  wrongs  long  endured.  Whatever 
makes  for  injustice,  whether  through  popular  impulse 
or  through  secret  encroachment,  should  be  avoided. 
But  it  is  an  unphilosophic  if  not  dishonest  system, 
which  so  far  takes  account  of  popular  impulse  as  to 
give  secret  encroachment  the  absolute  mastery  of  the 
situation.  Whether  for  good  or  for  evil  the  people 
have  the  undoubted  right  to  directly  control  the  selec 
tion  of  the  Federal  judges,  both  for  the  supreme  and 
inferior  courts.  This  is  not  the  same  thing  as  the 
rule  of  the  majority  right  or  wrong ;  but  if  it  were,  the 
principle  which  justifies  popular  control  as  to  any 
branch  of  the  government  from  the  necessity  of  the 
case  justifies  it  as  to  all  departments.  There  is  no 
higher  rightful  power  than  the  people  in  this  or  any 
other  government.  A  few  men  who  have  become  em 
powered  to  create  the  incumbents  of  one  department 
of  the  people's  government,  will  not  be  attentive  to 
the  general  interest  in  their  selections.  Each  appoint 
ment  of  a  Federal  judge  has  shown  that  the  questions 
considered  were  politics,  and  the  influence  of  railroads 
or  other  corporations.  Men  of  learning  and  ability 
have  not  been  appointed  because  they  were  men  of 
learning  or  ability,  but  because  first  and  chiefly  they 
have  leaned  toward  special  privilege  or  that  economic 
philosophy  which  unjustly  distributes  the  wealth  of 
the  country,  or  seeks  to  keep  it  so  distributed.  The 
independence  which  the  Federal  judiciaries  have  mani 
fested  is  a  mere  absolutism  in  favor  of  plutocracy,  with 
a  fearless  disregard  of  what  the  people  think  or  desire. 
They  have  shown  no  greater  judicial  ability  than  the 

122 


ELECT  THE  FEDERAL  JUDGES. 

state  judges,  outside  of  a  few  distinguished  exceptions ; 
while  their  stability  has  consisted  in  adhering  to  the 
interests  of  their  creators  in  further  consideration  of 
distinguished  favors  and  social  attentions  from  those 
who  control  the  wealth  of  the  land.  If  the  Supreme 
Court  or  the  inferior  Federal  Courts  may  invalidate 
an  act  of  Congress,  a  state  constitution  or  a  state  law, 
or  if  it  may,  as  recently  suggested,  even  assume  to  in 
validate  an  amendment  to  the  Federal  Constitution 
itself  because  not  constitutionally  passed,  it  follows 
that  it  is  the  ultimate  and  most  powerful  body  in  the 
structure  of  our  government,  and  that  its  members 
ought  either  to  be  elected  by  the  people  for  terms  of 
moderate  length,  say  six  years,  or  else  it  should  be 
deprived  of  the  power  to  sit  in  judgment  upon  the 
validity  of  these  acts  of  the  people.  The  danger  to 
free  institutions  from  these  extraordinary  powers  can 
not  otherwise  be  avoided.  It  is  a  novel  system  under 
which  the  people  may  exert  their  whole  energies  to 
place  in  power  a  Congress  to  pass  a  particular  law  con 
ceived  by  the  people  to  be  needful,  only  to  have  the 
law  when  passed  set  aside  by  the  vote  of  one  man, 
that  is,  by  a  vote  of  five  to  four  in  the  court.  And  it 
is  the  more  novel  when  it  is  considered  that  the  people 
who  ratified  the  Federal  Constitution  did  not  directly 
confer  the  power.  It  has  been  derived  through  the 
adjudication  of  the  very  court  which  exercises  it. 
The  necessity  for  the  power  was  determined  by  the 
court  which  uses  the  power.  Thus,  to  determine  the 
necessity  for  the  power  to  be  in  the  court,  which  so 
determines  and  uses  the  power,  and  to  use  it  to  over 
throw  the  legislative  will  are  not  acts  of  the  weakest 

123 


ELECT  THE  FEDERAL  JUDGES. 

branch  of  the  government.  In  theory  the  Constitution 
is  the  direct  expression  of  the  people  themselves  and 
an  act  of  Congress  is  the  representative  expression  of 
the  people.  But  the  sequence  to  these  propositions  is 
not  that  the  Supreme  Court  may  authoritatively  say 
when  the  law  conforms  to  and  when  it  conflicts  with 
the  Constitution.  That  power  ought  to  be  expressly 
conferred  upon  the  court  to  be  exercised  by  it,  and  not 
metaphysically  deduced  by  the  court,  which  assumes 
this  supreme  function. 

Even  the  interpretation  of  the  law  does  not  extend 
to  the  invalidation  of  the  law.  The  court  could  give 
its  opinion  that  the  law  is  unconstitutional,  as  the 
attorney  general  frequently  does,  and  this  would  be 
interpretation.  The  Congress  very  frequently  con 
siders  the  constitutionality  of  proposed  legislation  be 
fore  passing  upon  it,  and  this  is  interpretation.  The 
English  courts  interpret  the  law,  but  they  may  not 
invalidate  an  Act  of  Parliament.  The  invalidation  of 
an  act  of  congress  is  something  more  than  interpre 
tation;  it  is  the  binding  judgment  following  interpre 
tation.  What  would  have  been  the  consequence  if 
the  Supreme  Court  at  the  beginning  had  adopted  the 
practice  of  giving  its  interpretation  instead  of  its 
judgment  upon  the  theory  that  the  several  branches 
of  the  government  are  independent,  and  that  it  is  no 
more  the  guardian  of  the  Constitution  than  either  of 
the  other  branches?  Manifestly  in  due  season  the 
sober  intellect  of  the  country  would  have  enforced  the 
repeal  of  unconstitutional  legislation ;  or  if  not,  would 
the  final  result  have  been  worse  than  the  revolutionary 
judgments  which  the  Supreme  Court  has  rendered  at 

124 


ELECT  THE  FEDERAL  JUDGES. 

intervals  of  time,  such  as  McCulloch  vs.  Maryland 
and  Downes  vs.  Bidwell?  Have  not  the  bulk  of  these 
decisions,  which  invalidated  national  laws,  state  laws 
and  municipal  ordinances,  led  straight  to  the  intrench- 
ment  of  special  privilege?  Have  not  the  several  clauses 
of  the  Constitution  restraining  state  action  been  con 
strued  to  cripple  the  people  in  their  defence  against 
organized  wealth?  If  the  Supreme  Court  judges  had 
been  responsible  to  the  people  at  large  every  six  years 
would  they  have  been  favorable  to  special  interests? 
Out  of  the  historic  origin  of  courts  as  the  emanations 
of  royal  authority,  out  of  the  maxim  that  courts  in 
terpret  the  law,  out  of  the  axiom  that  a  lower  law  is 
less  law  than  a  higher  law  has  grown  the  dangerous 
system  that  the  Supreme  Court  ought  to  be  independ 
ent  of  the  people  and  revered  as  a  sacred  fountain  of 
authority,  and  may  solely  adjudge  the  invalidity  of  a 
law ;  and  that  such  a  judgment  even  in  a  suit  between 
private  parties  becomes  a  rule  of  political  action.  A 
people  which  pretends  to  be  free  and  self-governing 
may  well  wake  up  to  the  necessity,  and  for  these 
reasons  alone,  of  placing  the  Federal  judiciaries,  both 
supreme  and  inferior,  under  popular  control. 

But,  perhaps  the  most  fruitful  source  of  jurisdiction 
for  the  Federal  Courts  arises  out  of  the  enlargement 
of  controversies  between  citizens  of  different  states. 
Corporations,  when  in  a  confidential  mood,  make  the 
boast  that  the  Federal  Courts  always  have  and  always 
will  take  care  of  the  property  of  the  country,  which 
means  the  people  who  have  property.  Specific  data 
could  be  obtained  of  the  cases  lost  and  won  by  the 
railroads  which  remove  their  cases  to  the  Federal 

125 


ELECT  THE  FEDERAL  JUDGES. 

Courts  in  Chicago.  But  it  may  be  sufficient  to  say 
that  the  attorney  of  one  of  these  railroads  recently 
stated  that  he  had  never  lost  a  case  for  his  company 
in  these  courts.  Federal  judges  take  a  specific  oath  to 
do  justice  between  the  rich  and  the  poor  alike,  and  it 
is  not  perceived  what  claim  property  as  such  can 
legitimately  make  upon  the  attention  of  these  courts. 
But  it  is  a  notorious  fact  that  the  jurisdiction  of  the 
state  courts  are  set  aside  by  the  removal  acts  and  all 
corporations,  which  can  use  the  Federal  jurisdictions. 
The  Constitution  itself  provides  that  the  Federal 
Courts  shall  have  jurisdiction  of  controversies  be 
tween  citizens  of  different  states.  For  the  purposes 
of  removal  corporations  are  held  to  be  citizens  of  the 
state  of  their  creation,  because  conclusively  presumed 
to  be  composed  of  citizens  of  that  state,  and  these 
removals  have  been  and  often  are  made  in  the  face  of 
facts  which  overcame  that  presumption  if  it  ever 
should  have  obtained. 

Thus,  a  number  of  men  residing  in  Chicago,  and 
who  are  citizens  of  Illinois,  procure  the  incorporation 
of  a  company  under  the  laws  of  New  Jersey.  These 
men  own  the  stock  of  the  company,  the  business  prop 
erty  may  all  be  located  in  Illinois.  These  men  demand 
the  protecting  powers  of  the  state  authorities  for  their 
New  Jersey  company.  Yet,  if  the  company  is  sued  in 
the  courts  of  Illinois,  by  a  citizen  of  Illinois,  the  com 
pany  removes  the  cause  to  the  Federal  Court  on  the 
ground  that  there  is  a  controversy  between  citizens  of 
different  states.  The  point  is,  a  corporation  is  not  a 
citizen.  A  citizen  is  a  person.  For  a  corporation  is 
an  artificial  body,  and  a  modern  corporation  is  not  the 

126 


ELECT  THE  FEDERAL  JUDGES. 

persons  who  procure  the  charter.  They  are  not  em 
powered  as  incorporators  and  their  successors  to  ex 
ercise  certain  chartered  powers.  The  theory  of  con 
troversies  between  citizens  of  different  states,  entitling 
the  Federal  Courts  to  take  jurisdiction,  is  exceedingly 
simple.  As  the  states  were  independent  republics  it 
was  naturally  supposed  that  there  might  be  local 
prejudice  against  a  citizen  of  a  different  state,  who 
should  come  or  be  brought  in  a  state  court;  and  that 
a  citizen  of  the  state  in  which  the  suit  was  brought 
would  have  an  advantage  over  the  citizen  of  another 
state  in  the  local  courts.  The  Federal  Courts  being 
inter-state  tribunals,  were  thought  to  be  the  safest 
forums  for  the  adjustment  of  controversies  between 
citizens  of  different  states.  But  how  is  there  a  con 
troversy  between  such  citizens  when  the  chief,  if  not 
all  the  parties  in  interest  in  a  New  Jersey  corporation, 
are  citizens  of  Illinois,  and  the  adverse  party  to  the 
suit  is  a  citizen  of  Illinois?  Thus,  such  a  New  Jersey 
corporation  can,  under  the  system  which  has  grown 
up,  try  its  suits  in  the  Federal  Courts  in  every  state  in 
the  Union,  except  New  Jersey.  As  all  the  great  cor 
porations  are  chartered  in  some  one  of  these  states 
which  has  recognized  the  "logic  of  monopoly/*  it 
follows  that  they  are  independent  of  the  state  laws 
and  the  state  courts.  All  the  great  railroads  and  all 
the  great  corporations  thus  seek  the  shelter  of  the 
Federal  Courts  whose  independence  from  popular  pas 
sions  makes  the  law  sure  and  smooth  for  them.  It  is 
a  notorious  fact,  too,  that  the  rules  of  the  Federal 
Courts  are  so  drawn  that  the  poor  have  the  barest 
chance  of  success.  The  way  is  bestrewn  with  complex 

127 


ELECT  THE  FEDERAL  JUDGES. 

technicalities,  with  arbitrary  rulings.  There  is  not, 
in  fact,  the  right  of  trial  by  jury  in  these  courts ;  there 
is  only  the  favor  of  such  a  trial  upon  the  consent  of 
the  judge.  For  the  judge  can  withdraw  any  case 
from  the  jury,  and  the  practice  of  doing  so  is  notori 
ously  common.  The  court  passes  on  the  facts,  the 
court  instructs  the  jury  orally,  and  sums  up  the  facts, 
emphasizing  what  it  chooses.  If  the  jury  returns  a 
verdict  for  a  poor  man,  the  court  may  set  it  aside.  And 
if  this  is  done  the  expense  and  labor  of  another  trial 
are  peculiarly  heavy.  If  one  is  rendered  for  a  corpora 
tion  it  likely  will  not  be  set  aside.  But  if  it  is,  the 
corporation  can  serenely  await  the  second  trial.  The 
case  may  be  diverted  upon  some  collateral  point.  A 
ruling  of  a  court  of  appeal  requires  a  great  deal  of 
money,  for  the  rules  of  the  court  impose  such  onerous 
burdens  upon  those  who  appeal,  such  as  requiring  the 
record  to  be  printed,  that  appeals  are  impossible  to  the 
poor.  Candid  consideration  of  the  practice  and  the 
rules  of  these  courts  will  convince  any  one  that  they 
are  the  courts  of  plutocracy;  and  that  the  poor,  the 
maimed,  the  oppressed  can  expect  neither  pity  nor 
justice  in  them.  Of  course,  there  are  exceptions,  and 
exceptional  judges.  No  condemnation  upon  a  subject 
of  this  kind  can  be  all  inclusive.  Also  it  ought  to  be 
said  that  in  a  suit  between  corporations  of  equal 
power,  between  individuals  of  equal  standing,  or  of 
equally  indifferent  standing,  or  between  an  individual 
and  an  obscure  corporation  as  to  some  subject  not 
suggestive  of  the  sanctity  of  property  and  ordinarily 
in  a  criminal  cause,  a  trial  in  a  Federal  Court  may  be 
fair.  Nevertheless,  the  general  condemnation  that 

128 


ELECT  THE  FEDERAL  JUDGES. 

they  are  the  courts  of  plutocracy  cannot  be  success 
fully  assailed.  What  excuse  can  men  have  who  take 
a  specific  oath  provided  by  law  to  do  justice  to  the 
rich  and  the  poor  alike,  so  to  build  up  a  practice  and 
a  jurisprudence  that  the  courts  are  accessible  only  to 
those  who  have  money?  The  peculiar  constitution  of 
the  Federal  Courts  has  made  this  evolution  easier  than 
it  would  have  been  with  them  if  the  judges  had  been 
elective.  A  deep  laid  plan  of  imperial  consolidation 
has  promoted  the  enlargement  of  the  jurisdiction  of 
these  courts  by  casuistical  reasoning  and  ill-concealed 
usurpation  until  their  jurisdiction  is  practically  bound 
less. 

"Depend  upon  it,"  wrote  Alexander  H.  Stephens, 
"there  is  no  difference  between  consolidation  and  em 
pire;  no  difference  between  centralism  and  imperial 
ism/"  When  the  i4th  amendment  was  added  to  the 
Constitution  they  were  poor  judges  of  human  nature 
who  supposed  that  its  apparent  principles  of  liberty 
were  in  safer  hands  for  being  centrally  administered 
than  they  would  have  been  with  the  states  themselves. 
And  so  the  brave  men  who  went  through  the  terrible 
conflict  of  1861,  and  who  are  yet  living,  have  seen  an 
interpretation  put  upon  its  results,  which,  if  antici 
pated  before  the  war,  would  have  prevented  the  firing 
of  a  shot.  A  union  of  men  or  of  states  based  upon 
affection  is  a  different  thing  from  a  union  bound  to 
gether  by  force,  and  whose  units  are  disciplined  as  to 
matters  of  the  purest  local  interest  by  the  appointive 
judiciary  of  a  consolidated  government. 

The  war  abolished  the  avowed  and  visible  slavery 
of  the  negro;  but,  accurately  speaking,  what  does  it 

129 


ELECT  THE  FEDERAL  JUDGES. 

amount  to  in  the  face  of  the  use  to  which  the  i4th 
amendment  has  been  put? 

The  i4th  amendment  is  very  easily  dodged  so  far 
as  the  negro  is  concerned.  And  this  is  done  without 
much  objection  and  generally  with  applause.  While 
this  magna  charta  of  the  general  government  has  pro 
duced  perennial  benefits  to  those  whom  the  abolition 
ists  could  scarcely  have  dreamed  would  have  derived 
anything  out  of  a  glorious  war  for  liberty.  The  i4th 
amendment  has  committed  to  the  care  of  the  Federal 
Courts  every  special  interest.  The  states  may  tax 
corporations,  but  the  Federal  Courts  may  invalidate 
the  taxation;  all  sorts  of  local  regulations  as  to  rail 
roads,  street  railways  and  what  not  are  invalidated 
under  it.  There  seems  to  be  no  subject  of  state  action 
which  is  not  covered  by  the  i4th  amendment.  The 
result  is  that  the  states  may  do  only  what  the  Federal 
Courts  decide  the  i4th  amendment  does  not  prohibit. 
Philosophically  and  in  truth  what  was,  what  could  be 
gained  when  the  power  of  securing  the  equal  protec 
tion  of  the  laws  and  equal  rights  for  all  involved  the 
creation  of  a  virtual  empire?  What  a  paradox  this  is, 
which  purports  to  secure  liberty  by  destroying  the 
only  sources  of  liberty  known  then  or  now,  namely, 
the  rule  of  the  people  and  the  supremacy  of  local  gov 
ernment  in  local  affairs.  The  last  few  years  have  seen 
diabolical  constructions  placed  upon  the  war  of  1861 
by  the  party  which  claims  the  glories  of  that  war,  and 
which  has  been  paramount  since  the  war. 

If  the  constitutional  sequence  of  that  war  is  the 
right  to  subjugate  weaker  people  and  tax  them  with 
out  representation ;  if  as  one  of  its  results  the  military 

130 


ELECT  THE  FEDERAL  JUDGES. 

can  be  supreme  at  will ;  if  as  another  of  its  results  the 
crime  of  sedition  has  been  created,  and  freedom  of  the 
press  and  of  speech  and  a  right  to  use  the  mails  have 
been  curtailed  or  placed  at  the  disposal  of  the  govern 
ment,  then  the  mere  fact  that  the  negro  was  emanci 
pated  in  the  course  of  the  war  does  not  prevent  the 
conclusion  that  the  deeper  impulse  projected  to  this 
day  with  studied  care  was  the  creation  of  an  empire 
robed  for  effect  in  the  apparel  of  a  republic.  The 
Panama  episode  is  good  proof  that  secession  of  itself 
is  not  nearly  so  reprehensible  as  the  republican  party 
pretended  in  the  days  when  it  inveighed  against  seces 
sion  as  the  embodiment  of  treason.  The  powers  which 
have  been  coaxed  from  the  plausible  surface  of  the 
I4th  amendment,  and  through  which  organized  wealth 
has  its  way  in  the  Federal  Courts,  is  one  of  the  criteria 
of  the  meaning  of  the  war  of  1861. 

The  task  of  taking  these  courts  in  hand  now  devolves 
upon  the  people.  There  is  no  place  in  a  republic  for 
courts  so  constituted.  Time  has  fully  shown  that  the 
reasons  advanced  in  their  favor  when  the  constitution 
was  pending  before  the  people  were  such  as  men 
might  advance,  whose  motives  were  sinister,  or  such 
as  men  might  advance  from  the  recesses  of  the  mind, 
based  upon  insufficient  data  and  without  that  experi 
ence,  which  in  all  matters  of  policy,  is  necessary  to 
true  knowledge.  Jefferson  uttered  a  great  truth  when 
he  said  that  better  results  might  be  obtained  by  ap 
pointing  the  judges,  but  it  was  doubtful,  and  in  such 
a  case  principle  should  be  consulted.  The  principle 
was,  of  course,  that  the  people  are  the  source  of  gov 
ernment,  and  necessarily  of  all  of  its  departments,  and 


ELECT  THE  FEDERAL  JUDGES. 

that  the  judges  should  hold  their  commissions  from 
the  people  themselves.  Progress  points  the  way  to 
this  end.  Despotism  and  retrogression,  its  accompan 
iment,  look  to  the  perpetuation  of  the  present  system. 


132 


DESPOTISM  REVAMPED. 

The  barons  of  special  privilege,  all  of  whom  are  uni 
formly  supporting  the  present  revolutionary  adminis 
tration,  threaten  the  American  people  with  financial 
wreckage,  unless  the  policy  outlined  by  the  Porto 
Rican  bill  shall  be  approved  at  the  polls.  The  admin 
istration  is  attempting  to  distract  public  attention  to 
a  purely  economic  question  and  from  the  colonial  ques 
tion.  And  if  the  people,  led  by  this  deception,  return 
the  present  administration  to  power  that  act  will  be 
construed  as  a  popular  approval  of  the  present  colon 
ialism  of  Porto  Rico  and  of  the  future  colonialism  of 
the  Philippines.  If  then  it  becomes  advisable  to  test 
in  the  Supreme  Court  what  the  people  will  be  alleged 
to  have  approved  at  the  polls  that  also  will  be  done. 
And  when  the  Supreme  Court  finds  that  despotic  gov 
ernment  over  Porto  Rico  is  constitutional  the  people 
will  in  vain  protest  that  they  believed  that  there  was 
no  such  issue  as  imperialism  and  that  the  currency 
question  was  paramount  in  1900.  The  contest  at  that 
conjuncture  of  affairs  will  have  been  lost  to  the  mon- 
archial  principle. 

But  before  the  people  are  distracted  from  the  over 
shadowing  issue  to  a  mere  economic  problem,  and  be 
fore  they  give  it  into  the  hands  of  the  revolutionists 
to  say  that  this  republican  form  of  government  has 

133 


DESPOTISM  REVAMPED. 

been  changed  by  their  vote,  they  should  pause  and 
consider  the  full  import  of  the  step  to  be  taken. 

The  revolutionary  press  has  already  found  the  Porto 
Rican  bill  to  be  constitutional,  or  at  least  not  to  be  in- 
cursive  of  anything  in  the  constitution.  The  statement 
of  the  question  proceeds  upon  a  theory  of  interpreta 
tion  entirely  novel.  The  constitution  in  its  entirety 
is  not  over  the  islands  until  Congress  extends  it  to 
them;  Congress  is  expressly  prohibited  from  passing 
certain  laws,  prohibited  generally  and  universally. 
These  limitations  are  expressed  in  the  bill  of  rights 
and  in  some  other  portions  of  the  constitution,  and, 
to  speak  specifically,  as  Congress  is  negatived  from 
passing  any  bill  of  attainder,  ex  post  facto  law  or  law 
prescribing  any  form  of  religion,  or  where  Congress  is 
otherwise  limited  in  its  power,  the  constitution  may 
be  said  to  be  over  the  islands.  In  all  other  senses  it  is 
not  over  the  islands.  Hence,  to  proceed  with  the 
argument,  as  Congress  may  collect  taxes,  duties  and 
imposts  and  as  they  must  be  "uniform  throughout  the 
United  States,"  and  as  the  term  United  States  means 
the  states  and  territories  but  not  the  islands,  and  as 
there  is  no  express  negation  upon  Congress  from  mak 
ing  duties  unequal  as  between  the  United  States  and 
disconnected  territory  like  Porto  Rico,  the  Porto  Rican 
bill  is  not  unconstitutional.  This  is  the  statement  that 
the  revolutionists  make  of  the  case. 

Properly,  then,  a  brief  survey  of  the  materials  which 
were  cemented  into  the  fabric  of  the  republic  under 
which  we  live  may  be  indulged  in  to  ascertain  how 
much  of  truth  there  is  in  these  contentions  and  whether 
it  be  not  the  fact  that  the  republican  party  has  per- 

134 


DESPOTISM  REVAMPED. 

petrated  revolution  and  is  now  clamoring  to  obtain 
a  vote  which  may  be  tortured  into  a  plebiscitum  of 
revolution. 

The  Porto  Rican  law  of  April  12,  1900,  apparently 
enacted  at  that  late  day  so  as  to  render  its  construction 
in  the  Supreme  Court  improbable  before  the  election, 
is  distinguished  by  the  following  provisions: 

1.  The  Porto  Ricans  are  not  citizens  of  the  United 
States,  nor  are  they  promised  citizenship  at  any  time 
whatever. 

2.  Porto  Rico  is  not  a  territory  of  the  United  States 
preparing  itself  for  statehood,  but  it  is  a  colonial  de 
pendency  and  no  statehood  is  promised  or  foreshad 
owed. 

3.  The   Porto   Ricans   have   no   representation   in 
Congress. 

4.  The  Porto  Ricans  are  taxed  without  such  repre 
sentation,  which  was  formerly  denounced  as  tyranny. 

5.  The  Porto  Ricans,  while  declared  to  be  citizens 
of  Porto  Rico  are  under  the  effect,  the  provision  and 
the  spirit  of  the  Porto  Rican  law  subjects  of  the  United 
States. 

6.  The  upper  house  of  Porto  Rico  is  appointed  by 
the  president  of  the  United  States  and  is  called  the 
executive  council,  and  this  executive  council  has  the 
power  of  passing  upon  the  qualification  of  voters  for 
the  lower  house. 

7.  No  person  can  be  a  member  of  the  lower  house 
unless  he  possesses  in  his  own  right  taxable  property. 

8.  The  governor  is  appointed  by  the  president  and 
has  the  power  to  veto  all  legislation. 

135 


DESPOTISM  REVAMPED. 

9.  There  is  a  two-edged  tariff  of  15  per  centum  be 
tween  the  United  States  and  Porto  Rico. 

10.  The   supreme   judges   of   Porto   Rico   are   ap 
pointed  by  the  president  and  the  local  judges  by  the 
governor,  an  appointee  of  the  president. 

11.  All  the  salaries  of  the  president's  appointees 
are  to  be  paid  by  the  Porto  Ricans. 

That  our  fathers  should  have  resisted  with  their 
life's  blood  the  assertion,  of  wrongs  like  the  foregoing 
as  against  them,  and  then  that  they  should  have  for 
mulated  a  constitution  which  by  the  force  of  its  sov 
ereignty  or  its  implied  powers  or  the  absence  in  it 
of  proper  limitations  permits  the  perpetration  of  the 
same  wrongs  as  against  other  peoples  is  precisely 
what  the  revolutionists  ask  us  to  believe.  Great  Brit 
ain  pursued  the  same  policy  toward  the  colonies  of 
America  as  the  present  administration  is  pursuing 
toward  Porto  Rico  under  the  Porto  Rican  law  of 
April  12,  1900. 

On  May  17,  1763,  the  British  parliament  passed  the 
"molasses  act,"  which  levied  a  high  tax  against  the 
importation  in  the  colonies  of  sugars,  syrups  and 
molasses. 

On  April  5,  1764,  the  British  parliament  passed  the 
"sugar  act,"  which  levied  heavy  duties,  not  only  upon 
sugar,  but  upon  everything  else  that  could  be  worn, 
eaten  or  used  by  the  Americans.  And  the  money  so 
raised  was  to  be  paid  to  the  crown  and  by  the  crown 
used  to  pay  colonial  governors  and  judges  and  twenty 
regiments  of  troops  to  be  kept  standing  for  their  sup 
port  and  to  overawe  discontent  by  the  arm  of  the 
military. 

136 


DESPOTISM  REVAMPED. 

On  March  22,  1765,  the  British  parliament  passed 
the  stamp  act,  by  which  a  heavy  tax  was  paid  upon 
every  paper  filed  in  court,  every  copy  or  probate  of  a 
will,  every  deed,  bond,  note,  lease,  conveyance  or  con 
tract;  every  pamphlet,  newspaper,  advertisement,  al 
manac,  policy  of  insurance  and  other  things  far  too 
numerous  to  mention.  Certain  violations  of  this  act 
were  punishable  by  death. 

The  American  people  were  driven  to  frenzy  by  these 
despotic  measures.  The  king  answered  their  com 
plaints  by  the  "quartering  act"  of  April,  1765,  by  which 
large  bodies  of  troops  were  to  be  sent  to  America  and 
quartered  in  the  houses  of  the  Americans,  in  order  to 
render  "his  majesty's"  dominions  more  secure  and  to 
suppress  anarchy  and  rebellion  and  effectually  to  en 
force  the  principle  that  the  "king  hath  and  of  right 
ought  to  have  full  power  and  authority  to  make  laws 
and  statutes  of  sufficient  force  and  validity  to  bind  the 
colonies  and  people  of  America  subjects  of  the  crown 
of  Great  Britain  and  in  all  cases  whatsoever." 

The  course  of  the  British  government  tending  uni 
formly  toward  more  outrageous  oppression,  delegates 
from  Massachusetts,  Connecticut,  Rhode  Island,  New 
York,  New  Jersey,  Pennsylvania,  Delaware,  Maryland 
and  South  Carolina  met  in  New  York  on  October  7, 
1765,  and  on  the  igth  of  that  month  these  delegates, 
calling  themselves  the  stamp  congress,  adopted  res 
olutions  against  the  British  government.  Among 
other  things  they  resolved: 

"That  it  is  essential  to  the  freedom  of  the  people 
and  the  undoubted  right  of  Englishmen  that  no  taxes 
be  imposed  on  them  but  with  their  own  consent,  given 

137 


DESPOTISM  REVAMPED. 

personally  or  by  their  representatives.  That  the  peo 
ple  of  these  colonies  are  not  and  from  their  local  cir 
cumstances  cannot  be  represented  in  the  house  of  com 
mons  in  Great  Britain.  That  the  only  representatives 
of  the  people  of  these  colonies  are  persons  chosen 
therein  by  themselves  and  that  no  taxes  ever  have  been 
or  can  be  constitutionally  imposed  on  them  but  by 
their  respective  legislatures." 

Patrick  Henry  in  the  house  of  burgesses  of  Virginia 
on  May  30,  1765,  offered  a  resolution  embodying  the 
sam/e  ideas,  which  was  adopted. 

On  March  12,  1773,  the  Virginia  house  of  burgesses 
thought  proper  to  adopt  some  means  of  obtaining 
ready  intelligence  of  new  acts  of  despotism  on  the  part 
of  Great  Britain,  which  were  following  each  other 
with  startling  rapidity.  Therefore  Richard  Henry 
Lee,  Benjamin  Harrison,  Thomas  Jefferson,  all  of 
whom  afterward  signed  the  declaration  of  independ 
ence  with  others,  were  appointed  a  committee  of  cor 
respondence. 

On  June  17,  1774,  the  house  of  Massachusetts,  under 
the  leadership  of  Samuel  Adams,  resolved  that  com 
mittees  from  all  the  colonies  should  be  called  to  con 
sider  the  acts  of  parliament.  The  house  appointed 
Samuel  Adams,  John  Adams  and  Robert  T.  Paine,  all 
of  whom  signed  the  declaration  of  independence,  with 
others,  as  a  committee  to  call  this  congress.  They  is 
sued  a  call  for  delegates  to  meet  in  Philadelphia  on 
September  5,  1774.  They  did  meet,  and  the  Carpen 
ters'  Association  of  Philadelphia,  corresponding  to  a 
union  of  this  day,  tendered  their  hall  to  the  delegates. 
Here  in  this  humble  chamber  the  presence  of  Omnis- 

138 


DESPOTISM  REVAMPED. 

cient  Justice  was  invoked  to  judge  of  the  rectitude  of 
their  intentions,  and  in  the  most  noble,  serious  and 
candid  mood  that  men  ever  assumed  for  the  considera 
tion  of  the  gravest  questions  of  life  these  delegates 
proceeded  to  pass  judgment  upon  the  acts  of  the 
crown.  Who  were  present?  George  Washington, 
Patrick  Henry,  Richard  Henry  Lee,  Samuel  Adams, 
John  Adams,  John  Jay,  John  Rutledge,  Peyton  Ran 
dolph,  Roger  Sherman  and  others.  Some  of  these 
afterward  signed  the  declaration  of  independence,  the 
articles  of  confederation  and  the  constitution. 

On  October  14,  1774,  the  first  continental  congress 
resolved  that  the  American  people  "are  entitled  to  life, 
liberty  and  property,"  and  "they  have  never  ceded  to 
any  foreign  power  whatever  a  right  to  dispose  of 
either  without  their  consent."  That  the  crown  had  no 
right  to  "tax  the  Americans  externally  or  internally" 
for  raising  a  "revenue  in  America  without  their  con 
sent  ;"  that  "keeping  a  standing  army  in  these  colonies 
in  times  of  peace  without  the  consent  of  the  legisla 
ture  of  that  colony  is  against  law."  That  legislative 
power  invested  in  a  "council  appointed  during  pleasure 
by  the  crown  is  unconstitutional,  dangerous  and  des 
tructive  to  the  freedom  of  American  legislation." 

On  October  20,  1774,  the  American  colonies  entered 
into  an  association  to  obtain  redress  and  to  refrain  from 
importations,  and  therefore  the  payment  of  the  taxes 
imposed.  And  that  association  was  provided  to  be 
maintained  until  the  obnoxious  acts  of  parliament 
were  repealed. 

On  June  23,  1775,  the  continental  congress  appointed 
John  Rutledge,  William  Livingston,  Benjamin  Frank- 

139 


DESPOTISM  REVAMPED. 

lin,  John  Jay  and  Thomas  Johnson  as  a  committee  to 
draw  up  a  "declaration  of  the  causes  of  taking  up  arms 
against  Great  Britain,"  to  be  published  "by  General 
Washington  upon  his  arrival  at  the  camp  before  Bos 
ton."  Jefferson  and  Dickinson  were  added  to  the  com 
mittee.  Of  these  William  Livingston  and  Franklin 
afterward  signed  the  constitution;  Franklin  signed 
both  the  declaration  of  independence  and  the  consti 
tution  and  Thomas  Jefferson  signed  the  declaration  of 
independence.  In  this  declaration  of  causes  it  was 
declared  that  the  colonies  had  been  taxed  without  rep 
resentation  ;  that  nothing  was  so  dreadful  as  a  foreign 
yoke  and  voluntary  slavery;  that  they  would  not 
"tamely  surrender  that  freedom  which  we  received 
from  our  gallant  ancestors,"  being  "with  one  mind 
resolved  to  die  freemen  rather  than  to  live  slaves." 

On  July  4,  1776,  the  unanimous  declaration  of  the 
thirteen  United  States  of  America  was  published,  com 
monly  called  the  declaration  of  independence.  And 
this  document,  among  other  things,  announced  the 
following  causes  which  had  impelled  the  colonies  to 
separate  from  Great  Britain:  "For  imposing  taxes 
upon  us  without  our  consent,"  "for  quartering  large 
bodies  of  armed  troops  among  us,"  "for  making  judges 
dependent  upon  his  (the  king's)  will  alone  for  the 
tenure  of  their  offices  and  the  amount  and  payment  of 
their  salaries."  And  by  way  of  preamble  they  de 
clared,  not  that  the  Americans  were  born  equal  with 
the  English.  As  Abraham  Lincoln  said,  the  declara 
tion  was  not  merely  revolutionary.  It  also  laid  down 
basic  truths  applicable  to  all  men  and  all  times  in 
all  places — that  "all  men  are  created  equal  and  en- 

140 


DESPOTISM  REVAMPED. 

dowed  with  the  inalienable  rights  of  life,  liberty  and 
the  pursuit  of  happiness,"  just  as  the  first  continental 
congress  resolved  and  in  almost  the  same  language  on 
October  14,  1774,  when  Washington,  Jay,  John  Ad 
ams,  Samuel  Adams  and  others  of  the  most  sober  and 
temperate  sense  were  present  and  gave  their  voice  to 
those  principles. 

On  November  15,  1777,  the  congress  formulated  the 
articles  of  confederation.  It  was  signed  by  the  dele 
gates  of  the  several  states  and  congress  met  under  it 
on  March  2,  1781.  Among  other  things  the  articles 
provided  that  "the  people  of  each  state  shall  have  free 
egress  and  regress  to  and  from  any  other  state  and 
shall  enjoy  therein  all  the  privileges  of  trade  and  com 
merce  subject;  to  the  same  duties,  impositions  and  re 
strictions  as  the  inhabitants  thereof  respectively." 

On  December  20,  1783,  the  assembly  of  Virginia 
ceded  to  the  United  States  for  the  benefit  of  the  states 
the  territory  northwest  of  the  Ohio  river  "upon  condi 
tion  that  it  be  laid  out  and  formed  into  states  having 
the  rights  of  sovereignty,  freedom  and  independence 
of  the  other  states."  And  on  March  i,  1784,  Thomas 
Jefferson  and  James  Monroe,  with  others,  executed 
the  deed  of  Virginia,  conveying  that  territory  to  the 
United  States. 

On  July  13,  1787,  the  congress,  under  the  articles  of 
confederation,  passed  an  ordinance  for  the  government 
of  the  northwestern  territory,  so  ceded  by  Virginia. 
It  was  declared  therein  to  be  the  purpose  of  that  ordi 
nance  to  "extend  the  fundamental  principles  of  civil 
and  religous  liberty  which  form  the  basis  whereon 
these  republics,  their  laws  and  constitutions  are 

141 


DESPOTISM  REVAMPED. 

erected,"  and  "to  fix  and  establish  those  principles  as 
the  basis  of  all  laws,  constitutions  and  governments 
which  forever  hereafter  shall  be  formed  in  said  terri 
tory."  The  ordinance  provided  for  the  liberties  ex 
pressed  afterward  in  the  bill  of  rights  of  the'  constitu 
tion.  It  provided  that  as  to  Indians  "their  lands  and 
property  shall  never  be  taken  from  them  without  their 
consent;"  that  taxes  should  be  uniform  and  should  be 
laid  by  the  "legislatures  of  the  district  or  districts  or 
new  states  as  in  the  original  states,"  and  that  the  con 
stitution  and  government  of  the  states  to  be  formed 
out  of  said  territory  should  be  republican  and  that 
slavery  should  never  exist  in  said  territory. 

The  first  congress  which  sat  under  the  constitution 
passed  an  act  in  1789  for  the  enforcement  of  the  ordi 
nance  of  1787.  And  sixteen  of  the  thirty-nine  fram- 
ers  of  the  constitution  were  members  of  this  congress 
and  voted  for  the  act.  Robert  Sherman,  Robert  Mor 
ris  and  George  Clymer,  who  signed  the  declaration  of 
independence,  were  included  in  those  sixteen  members 
mentioned.  Roger  Sherman  and  George  Washington, 
as  before  shown,  participated  in  the  association  of 
October  20,  1774,  and  George  Washington  as  president 
of  the  United  States  approved  this  bill  as  to  the  north 
western  territory  enforcing  the  ordinance  of  1787. 

On  September  17,  1787,  the  constitution  of  the 
United  States  was  signed  by  the  delegates  in  congress, 
and  this  constitution  reached  back  to  the  principles 
enunciated  by  the  feeble  legislatures  of  the  Massachus 
etts  and  Virginia  colonies  and  welded  them  indissol- 
ubly  into  the  organic  law  of  a  "more  perfect  union." 
Representatives  and  direct  taxes  were  apportioned 

142 


DESPOTISM  REVAMPED. 

among  the  several  states  according  to  their  respective 
numbers,  which  numbers  should  be  determined,  in  a 
manner  since  amended,  excluding,  however,  "Indians 
not  taxed."  Duties,  imports  and  excises  were  pro 
vided  to  be  uniform  throughout  the  states  and  to  be 
levied  to  pay  debts  and  provide  for  the  common  de 
fense  and  welfare.  No  preference  was  to  be  given 
over  the  ports  of  any  state ;  no  duties  should  be  laid  on 
the  exports  of  any  state ;  the  citizens  of  each  state  had 
the  rights,  privileges  and  immunities  of  the  citizens 
in  the  several  states  and  were  declared  to  be  entitled 
to  the  equal  protection  of  the  laws. 

The  constitution  was  adopted  to  secure  the  bless 
ings  of  that  liberty  which  had  been  acquired  in  the 
revolutionary  war.  Of  course  the  constitution  does 
not  expressly  say  that  congress  shall  not  tax  people 
outside  of  the  states  living  in  a  disconnected  territory 
without  giving  them  representation.  It  does  not  say 
that  the  people  of  the  islands  of  the  sea  shall  be  for 
ever  free  from  the  dominion  of  congress  or  the  pres 
ident.  How  could  the  fathers  anticipate  such  a  con 
tingency  as  that?  Could  they  foresee  that  the  consti 
tution  would  be  held  by  this  generation  not  to  forbid 
that  form  of  oppression  as  to  islanders  of  the  sea  which 
the  arbitrary  power  of  parliament  had  imposed  upon 
the  American  colonists?  They  did  all  that  men  could 
have  done,  by  devotion,  by  money,  by  all  forms  of 
sacrifice  and  by  their  lives,  to  embody  into  the  organic 
law  of  the  land  the  great  principle  that  taxation  and 
representation  must  go  hand  in  hand  and  that  taxation 
without  representation  is  tyranny. 

Can  therefore  a  republic  so  founded  be  constitution- 

143 


DESPOTISM  REVAMPED. 

ally  capable  of  tyranny?  The  men  had  gone  to  war 
because  they  were  taxed  without  representation;  be 
cause  no  tax  could  be  imposed  upon  the  colonists 
without  their  consent;  because  they  were  entitled  to 
life,  liberty  and  property,  and  no  foreign  power  had 
the  right  to  dispose  of  either  without  their  consent. 
These  principles  characterize  every  document  and 
every  organic  instrument  executed  by  them  and  were 
reiterated  by  them  on  all  official  occasions  so  as  never 
to  leave  any  doubt  that  they  regarded  these  things  as 
axiomatic  and  cardinal  truths,  absolutely  impregnable 
from  assault  or  qualification. 

The  declaration  and  resolves  of  the  first  continental 
congress  of  October  14,  1774,  contained  the  same  prin 
ciples  as  the  declaration  of  independence  expressed  in 
practically  the  same  language.  And  yet  among  those 
who  were  in  that  congress  and  who  also  signed  the 
constitution  of  the  United  States  we  find  the  names 
of  George  Washington,  John  Rutledge  and  Roger 
Sherman. 

Those  who  signed  both  the  declaration  of  independ 
ence  and  the  articles  of  confederation  were : 

Josiah  Bartlett,  Thomas  McKean, 

Samuel  Adams,  John  Penn, 

Elbridge  Gerry,  Francis  Lewis, 

Roger  Sherman,  John  Witherspoon, 

Samuel  Huntington,  Richard  Henry  Lee, 

Oliver  Wolcott,  Francis  Lightfoot  Lee. 
Robert  Morris, 

Those  who  signed  the  articles  of  confederation  and 
the  constitution  were: 

144 


DESPOTISM  REVAMPED. 

Roger  Sherman,  Gouverneur  Morris, 

Robert  Morris,  Daniel  Carroll. 

Those  who  signed  the  declaration  of  independence 
and  the  constitution  were: 

Roger  Sherman,  Robert  Morris, 

Benjamin  Franklin,  George  Clymer, 

James  Wilson,  George  Reed. 

In  1803,  when  Louisiana  was  acquired,  and  in  1819, 
when  Florida  was  acquired,  no  one  dreamed  of  per 
petuating  a  colonial  government  upon  either  of  them. 
Their  inhabitants  were  made  citizens.  Their  territory 
was  prepared  for  the  creation  of  sovereign  states,  as 
the  northwestern  territory  had  been  prepared  by  the 
ordinance  of  1787  and  the  act  of  congress  of  1789. 
When  the  Mexican  territory  was  acquired  in  1848  the 
treaty  provided  that  the  Mexicans  were  free  to  retain 
the  title  and  rights  of  Mexican  citizens  or  to  acquire 
those  of  citizens  of  the  United  States,  and  the  executive 
policy  of  President  Polk  was  in  strict  harmony  with 
the  fundamental  principles  which  had  been  endowed 
with  immortal  life  and  vigor  by  Washington,  Frank 
lin,  Jefferson,  Jay,  Sherman  and  the  other  fathers  of 
American  liberty. 

When  the  Mexican  treaty  was  ratified  James  Bu 
chanan,  secretary  of  state  under  Polk,  announced  the 
following  policy  as  to  California,  which  had  been  ceded 
by  that  treaty : 

"This  government  de  facto  will,  of  course,  exercise 
no  power  inconsistent  with  the  provisions  of  the  con 
stitution  of  the  United  States,  which  is  the  supreme 
law  of  the  land.  For  this  reason  no  import  duties  can 

145 


DESPOTISM  REVAMPED. 

be  levied  in  California  on  articles  the  growth,  produce 
or  manufacture  of  the  United  States,  as  no  such  duties 
can  be  imposed  in  any  other  part  of  our  Union  on  the 
productions  of  California. 

"Nor  can  new  duties  be  charged  in  California  upon 
such  foreign  productions  as  have  already  paid  duties  in 
any  of  our  ports  of  entry,  for  the  obvious  reason  that 
California  is  within  the  territory  of  the  United  States." 

This  precedent  was  followed  when  Alaska  was  ac 
quired.  In  1820  Chief  Justice  Marshall,  who  had  been 
in  the  revolutionary  war  and  who  had  a  concrete 
knowledge  that  that  war  was  waged  against  taxation 
without  representation,  decided  that  duties,  imposts 
and  excises  must  be  uniform  as  between  the  states  and 
the  District  of  Columbia.  And  he  wrote:  "The  Dis 
trict  of  Columbia,  or  the  territory  west  of  the  Missouri, 
is  not  less  within  the  United  States  than  Maryland  or 
Pennsylvania;  and  it  is  not  less  necessary  that  uni 
formity  in  the  imposition  of  import  duties  and  excises 
should  be  observed  in  the  one  than  in  the  other." 

The  defenders  of  the  present  revolutionary  adminis 
tration  argue  that  this  decision  of  Marshall's  is  not 
binding  because  Marshall  was  called  upon  to  pass  on 
the  status  of  the  District  of  Columbia  and  not  upon 
that  of  Missouri  or  a  territory.  The  revolutionists  fur 
ther  say  that  the  Dred  Scott  case,  which  held  that 
there  is  "no  power  given  by  the  constitution  to  the 
federal  government  to  establish  colonies  to  be  gov 
erned  at  its  pleasure/'  was  reversed  by  the  battle  of 
Gettysburg.  But  Lincoln  in  his  oration  at  that  battle 
field  declared  in  effect  that  it  was  the  declaration  of 
independence  which  had  there  received  a  new  baptism, 

146 


DESPOTISM  REVAMPED. 

which  declaration  of  independence  must  be  repealed  in 
order  to  carry  on  colonialism. 

But  in  view  of  the  traditions  of  the  revolutionary 
war,  which  was  a  concrete  struggle  on  this  self-same 
question  of  taxation,  it  is  too  obvious  for  discussion 
and  admits  of  no  denial  that  the  McKinley  administra 
tion  has  perpetuated  revolution  in  the  form  of  this 
government.  What  is  there  in  the  constitution  to  have 
prevented  Porto  Rico  from  being  treated  as  a  territory 
advancing  to  statehood,  or  even  as  to  a  state  presently 
to  be  formed?  What  is  there  in  the  constitution  to 
have  prevented  due  observance  of  that  principle  that 
taxation  and  representation  go  hand  in  hand,  and  that 
life,  liberty  and  the  pursuit  of  happiness  are  inalienable 
rights? 

These  principles  were  grappled  into  the  adamant  of 
all  American  charters,  including  the  constitution,  with 
hooks  of  steel,  and  were  welded  there  by  the  fierce  heat 
of  an  eight-year  struggle  never  to  be  dislodged  except 
by  a  blast  of  revolution.  But  as  the  English  were  de 
termined  that  the  American  colonists  should  not  par 
ticipate  in  the  political  power  of  Great  Britain,  but 
should  be  used  for  the  purpose  of  commercial  profit, 
so  do  the  revolutionists  now  proceed  upon  that  theory 
as  to  the  Porto  Ricans. 

It  was  a  significant  thing  that  the  English  govern 
ment  annexed  the  Boer  republics  on  July  4,  1900,  the 
one  hundred  and  twenty-fourth  anniversary  of  our  dec 
laration  that  taxation  without  representation  is 
tyranny,  and  a  few  weeks  after  the  McKinley  adminis 
tration  had  repudiated  that  doctrine  by  the  Porto  Rican 
bill.  The  English  celebrated  the  confession  of  our 

147 


DESPOTISM  REVAMPED. 

error  on  the  anniversary  of  the  day  when  we  com 
mitted  it.  And  so  the  administration  was  estopped  to 
decry  the  strangulation  of  the  Boer  republics  when  it 
had  assassinated  in  our  own  midst  the  republican  prin 
ciple  which  caused  the  revolutionary  war  and  armed 
the  patriots  to  secure  liberty  and  independence.  The 
English  had  good  cause  for  rejoicing  on  the  anniver 
sary  of  the  declaration  of  independence  in  1900. 

What  is  the  Porto  Rican  bill,  therefore,  but  an  act 
of  revolution  having  the  full  effect  of  changing  the 
form  of  government  and  extinguishing  the  soul  of 
liberty  in  the  constitution?  The  American  colonists 
had  no  representation  in  parliament,  nor  have  the 
Porto  Ricans  in  congress,  with  or  without  the  privilege 
of  debate.  The  American  colonists  were  subjects  of 
the  crown;  the  Porto  Ricans  have  been  made  subjects 
of  the  United  States.  The  councils  of  the  American 
colonists  were  appointed  by  the  crown;  the  executive 
council  of  Porto  Rico  is  appointed  by  the  president. 
The  governors  of  the  colonists  were  appointed  by  the 
crown  and  had  the  power  of  veto ;  the  governor  of  Por 
to  Rico  is  appointed  by  the  president  and  has  the  power 
of  veto.  The  crown  taxed  the  colonists  without  rep 
resentation  ;  the  United  States  by  the  Porto  Rican  bill 
tax  the  Porto  Ricans  without  representation.  The 
crown's  appointees  in  the  colonies  were  paid  by  the 
Americans;  the  president's  appointees  in  Porto  Rico 
are  paid  by  the  Porto  Ricans. 

How  are  these  revolutionary  policies  justified?  On 
the  ground  that  only  part  of  the  constitution  is  over 
Porto  Rico,  and  that  as  to  the  part  that  is  not  over 
Porto  Rico  the  congress  has  despotic  power. 

148 


DESPOTISM  REVAMPED. 

The  Porto  Rican  bill  is  declared  by  the  revolution 
ists  to  be  the  forerunner  of  a  like  bill  as  to  the  Philip 
pines.  The  Filipinos  know  this.  They  also  know  and 
believe  that  President  McKinley  was  right  when  he 
said  that  "forcible  annexation  is  criminal  aggression," 
and,  believing  these  words,  they  have  taken  encourage 
ment  from  them  and  are  resisting  criminal  aggression. 
But  suppose  the  supreme  court  decides  that  the 
constitution  is  over  the  islands  where  the  congress  is 
expressly  restrained  and  that  it  is  not  otherwise  over 
the  islands;  that  in  consequence  the  Porto  Rican  act 
is  constitutional,  not  because  it  is  warranted  by  words 
in  the  constitution,  but  because  it  is  not  expressly  pro 
hibited  by  words  in  the  constitution — what  will  be  the 
status  of  the  republic? 

Will  the  people  have  the  courage  to  say  that  such  a 
decision  cannot  prescribe  a  rule  of  political  action 
which  shall  be  binding  on  future  presidents  and  con 
gresses?  Or  will  they  tamely  submit  as  upon  a  ques 
tion  irrevocably  and  firmly  settled?  To  this  point  does 
the  Porto  Rican  bill  conduct  a  republic  which  grew  out 
of  resistance  to  taxation  without  representation. 


149 


THE  PHILIPPINE  CONQUEST. 

During  the  campaign  of  1900  the  argument  advanced 
against  the  Philippine  aggression  was  the  repudiation 
of  the  fundamental  principles  of  the  republic  involved 
in  that  aggression.  And  coupled  with  this  was  the 
claim  of  injustice  being  perpetrated  against  a  helpless 
people.  The  problem  now  seems  to  be  what  guaran 
tees  have  the  people  at  home  against  infractions  of 
their  liberties  and  why  may  not  the  limitless  power 
of  a  "sovereign"  nation  be  directed  against  them  when 
the  apparent  exigency  arises  in  favor  of  those  who 
control  the  government?  For  when  a  principle  is  once 
undermined  the  principle  can  no  longer  be  looked  to 
for  security.  It  is  then  a  question  of  chance  as  to  the 
means  of  redress  and  protection. 

Since  then  the  constitution  and  the  declaration  have 
been  duly  ravished.  The  country  has  settled  down  to 
hear  the  reports  of  pillage,  murder  and  rapine  in  the 
islands  in  the  great  work  of  destroying  an  Asiatic  re 
public.  Plutocracy  proceeds  with  solemnity  and  dis 
patch  to  gather  in  the  insular  concessions  or  to  obstruct 
all  policies  when  the  concessions  are  not  readily  grant 
ed.  The  people  at  large  are  paying  the  taxes  and  under 
going  the  obvious  moral  decline  which  has  set  in.  In 
short  it  is  discovered  that  the  United  States  have  em 
barked  on  a  colonial  policy,  but  not  the  colonial  policy 
of  England  today.  It  is  the  colonial  policy  of  the  Eng- 

150 


THE  PHILIPPINE  CONQUEST. 

land  of  1776,  maintained  to  build  up  a  nation  of  custom 
ers  for  the  benefit  of  a  favored  class  at  home.  And  so  we 
find  American  ideas  sacrificed  not  merely  to  commer 
cialism  but  to  special  privilege.  The  people  furnish 
the  soldiers ;  the  people  pay  the  taxes ;  the  people  build 
the  ships,  and  the  trusts  gather  in  the  spoils. 

This  revolution  in  our  government  and  ideals  has 
been  accomplished  by  wrenching  the  fundamental  law 
and  the  fundamental  sentiments  of  a  whole  people 
once  devoted  to  liberty.  The  whole  of  society  has  been 
shaken.  The  evil  passions,  the  evil  ambitions  of  men 
are  kept  down  in  a  large  measure  by  the  unwritten 
law  of  ideals  which  have  become  intrenched  by  cen 
turies  of  indoctrination.  There  is  no  written  penalty 
affixed  to  selfishness,  cruelty,  lying,  hypocrisy,  greed, 
dishonor  or  hatred  or  the  other  demons  of  human  na 
ture  exorcised  or  controlled  by  the  power  of  civiliza 
tion.  But  when  the  rigor  of  those  ideals  is  loosened 
at  the  top  the  whole  system  of  morals  suffers  a  relaxa 
tion  and  a  relapse.  A  president  may  initiate  the  catas 
trophe,  but  its  impulse  will  recoil  upon  him.  The  con 
gressman  and  the  senator  will  feel  released  from  the 
strict  course  of  rectitude.  The  judge  on  the  bench 
will  see  in  the  life  about  him  and  the  policies  about 
him  excuse  for  yielding  to  the  gathering  pressure. 
All  other  officials  will  be  similarly  affected.  The  influ 
ence  will  creep  into  private  life.  It  will  dominate  the 
relations  between  men  in  business  and  in  society.  All 
principles,  whether  of  government  or  of  individuals, 
become  affected.  The  highwayman  in  the  alley  knows 
what  is  going  on  and  merely  raves  at  the  system  that 
marks  him  out  for  sure  punishment.  At  last  it  is  only 


THE  PHILIPPINE  CONQUEST. 

a  mask  that  conceals  the  bloated  face  of  society.  There 
is  nothing  left  but  organized  hypocrisy. 

We  all  expect  men  as  individuals  to  be  more  or  less 
illogical.  Life  is  illogical.  History  is  illogical.  Gov 
ernmental  policy  is  still  more  illogical.  But  there  is  a 
limit  to  its  illogic.  When  it  reaches  that  point  morals 
are  prostrated  upon  their  foundations.  A  president 
may  change  his  mind — but  not  from  the  right  to  the 
wrong.  He  may  contradict  himself — but  not  in  the 
same  breath.  He  may  preach  one  thing  and  do  another 
— but  circumstances  must  change.  There  must  be 
reason  for  such  alterations ;  there  must  be  sound  senti 
ment  for  them.  If  these  are  absent  it  will  not  be  long 
until  the  humblest  man  in  the  land  will  understand. 
And  if  the  president  may  do  such  things  why  not  him 
self?  It  is  a  question  of  example. 

If  there  ever  was  an  irrational  war  it  was  the  war 
with  Spain.  Americans  deride  the  French  as  mercurial, 
sentimental,  unsubstantial.  And  yet  what  appeared  to 
be  the  American  people  demanded  war  with  Spain. 
The  Spaniards  were  governing  without  the  consent  of 
the  governed,  but  they  were  willing  to  concede  more 
than  we  have  conceded.  Weyler  had  instituted  the 
reconcentrado  camps,  but  Spain  had  yielded  on  that 
point.  The  homes  of  the  islanders  were  being  burned, 
the  people  were  being  butchered  and  the  horrors  of 
war  hovered  over  the  desolate  land.  But  they  prom 
ised  to  end  the  war.  Spain  confessed  the  objections  to 
her  course.  And  yet  there  must  be  war.  The  Maine 
incident  was  eliminated  from  the  controversy  by  a 
court  of  our  own  selection.  And  yet  there  must  be 
war.  And  the  war  came. 

152 


THE  PHILIPPINE  CONQUEST. 

Then  the  American  people  beheld  the  United  States 
move  up  and  occupy  the  place  vacated  by  Spain.  We 
took  their  war  and  their  methods.  We  tricked  the 
Filipinos,  we  shot  them,  we  burned  their  homes.  We 
adopted  Weyler's  reconcentrado  policy.  We  taxed 
them  without  representation.  We  put  ourselves  in 
the  position  where  a  combination  of  powers  could 
drive  us  out  for  the  same  reason  that  we  drove  out 
Spain,  and  thereby  make  us  a  theme  for  epic  laughter 
as  long  as  the  world  should  stand.  Does  the  whole 
of  history  furnish  so  illogical  a  chapter?  It  seems 
too  puerile  to  believe  of  a  great  nation  which  traces  its 
liberties  to  the  time  when  our  ancestors  were  wild  men 
in  the  north  of  Germany  and  when,  as  barbarians  in 
the  British  Isles,  they  resisted  Caesar  and  threw  off 
the  yoke  of  benevolent  assimilation.  The  moral  effect 
of  such  a  course  of  shuffling  and  hypocrisy  cannot  be 
calculated  because  it  is  likely  to  affect  untold  genera 
tions. 

At  the  very  outset  of  the  scheme  of  conquering  the 
Filipinos  it  was  known  that  the  theory  of  the  army  had 
to  be  changed.  Conquest  cannot  be  left  to  a  citizen 
soldiery,  because  volunteers  fight  for  a  principle.  They 
fight  for  their  rights  and  their  homes.  Such  were  our 
soldiers  before  imperialism  became  a  national  dream. 
With  the  volunteers  we  had  twice  driven  back  the 
hosts  of  monarchy.  With  volunteers  we  had  met  and 
defeated  the  greatest  Anglo-Saxon  army  that  ever  took 
the  field.  And  yet  for  the  purpose  of  conquering  a 
people  armed  in  part  with  primitive  weapons  the  cre 
ation  of  a  regular  soldiery  many  times  its  former  size 

153 


THE  PHILIPPINE  CONQUEST. 

was  demanded.  This  is  what  Gibbon  wrote  about  the 
two  kinds  of  armies : 

"In  the  purer  days  of  the  (Roman)  commonwealth 
the  use  of  arms  was  reserved  for  those  ranks  of  the 
citizens  who  had  a  country  to  love,  a  property  to  de 
fend  and  some  share  in  enacting  the  laws,  which  it  was 
their  interest  as  well  as  duty  to  maintain.  But  in 
proportion  as  the  public  freedom  was  lost  in  extent  of 
conquest  war  was  gradually  improved  into  an  art  and 
depraved  into  a  trade." 

There  is  no  trouble  about  the  size  of  the  army.  It  is 
too  large  for  legitimate  purposes.  But  it  is  not  large 
enough  to  be  a  necessary  menace.  The  trouble  is  that 
the  theory  of  our  soldiery  has  been  changed.  Small  in 
comparison  as  it  is,  it  is  the  army  of  an  empire  and 
not  of  a  republic.  Our  soldiers  in  the  Philippines  are 
not  fighting  for  any  principle.  They  are  not  defending 
their  homes.  They  are  not  staying  aggression.  They 
are  not  repelling  an  attack  upon  liberty.  There  is  no 
sentiment  in  the  struggle.  There  is  no  conscience  in 
the  fight.  It  is  of  no  consequence  to  our  soldiers 
whether  they  win  or  lose,  except  as  a  matter  of  honor, 
advancement  and  money.  For  these  they  are  there  to 
conquer,  as  the  Arabs  were  in  Spain,  as  Spain  was  in 
Peru  and  Mexico,  and  as  Great  Britain  is  in  south 
Africa.  To  conquer  for  spoils  not  for  themselves,  be 
cause  they  are  only  hired  men,  but  for  the  trusts  at 
home — as  the  Spanish  regulars  fought  for  gold  for  the 
sovereign,  as  the  Englishman  is  fighting  for  the  banks 
of  London. 

We  have  been  assured  by  those  who  have  made  this 
army  that  it  is  too  small  to  be  dangerous  to  the  people 

154 


THE  PHILIPPINE  CONQUEST. 

at  home.  But  the  real  danger  lies  in  the  change  of  our 
ideals.  For  if  a  small  army  can  be  created  for  oppres 
sion  and  conquest  a  large  army  can  be  created  for  the 
same  purpose  when  a  large  army  is  required.  And  the 
precedent  is  already  established  for  the  use  of  such  an 
army  at  home  against  the  sullen  discontent  that  has 
already  been  sown  among  the  people. 

This  unaccountable  revolution  was  not  accomplished 
without  fraud  and  force,  and  that  more  subtle  form  of 
coercion  known  as  freedom  with  starvation.  Profes 
sors  were  driven  from  their  chairs,  the  pulpit  was  si 
lenced,  the  press  gagged,  officials  were  retired  to  pri 
vate  life  and  a  spirit  of  falsehood  and  misrepresenta 
tion  pervaded  the  atmosphere.  Imperialism  cannot 
succeed  without  the  satanic  influences  of  life,  and  these 
came  to  the  front  with  promises  and  threats,  with  dis 
simulation  and  with  bribery,  with  every  art  that  will 
persuade,  silence,  repress  or  purchase.  And  so  as  con 
sequences  of  such  an  initiation  it  has  followed  that 
freedom  of  speech  is  denied;  that  debate  is  frowned 
down  as  tiresome  and  intolerable,  and  that  the  post- 
office  department  has  become  a  censor  of  the  press  in 
vested  with  unbridled  despotism.  So  long  as  Spain 
and  France  could  repress  discussion  by  cutting  out 
men's  tongues  their  forms  of  monarchy  and  privilege 
flourished.  So  long  as  imperialism  can  intercept  the 
interchange  of  ideas  by  the  modern  methods  of  ostra 
cism  and  starvation  and  by  the  prevention  of  discus 
sion  and  publicity  in  all  the  ways  in  which  it  is  done 
imperialism  may  flourish.  But  against  reason  in  a 
fair  and  open  field  it  stands  no  chance  of  success. 

With  steam,  electricity  and  the  printing  press  elim- 

155 


THE  PHILIPPINE  CONQUEST. 

inated  from  the  world  it  would  require  no  great  degree 
of  prescience  to  foretell  the  ultimate  fate  of  the  Unit 
ed  States.  For  up  to  this  time  the  trend  of  affairs 
with  us  bears  such  a  resemblance  to  the  march  of 
events  in  the  Roman  republic  up  to  the  reign  of  Aug 
ustus  Caesar  that  the  similarities  cannot  be  overlooked. 

The  constitution  is  a  plastic  receptacle  into  which 
either  democracy  or  despotism  can  be  poured.  The 
insular  acquisitions  furnished  the  opportunity  for  a 
gigantic  stride  toward  despotism.  These  islands,  ac 
cording  to  historic  precedents,  according  to  the  spirit 
of  the  constitution,  which  is  the  declaration  of  inde 
pendence,  were  bound  to  be  treated  as  territories  ad 
vancing  toward  statehood.  But  those  who  had  become 
strong  through  special  privilege  overthrew  the  ideals 
of  the  republic.  If  these  islands  were  under  the  con 
stitution  then  special  privilege  could  not  enjoy  its 
spoils  in  the  form  of  tariff  laws,  and  then  a  more  as 
tute  set  of  reasoners,  greedy  for  power,  saw  the  long- 
looked-for  chance  to  greatly  centralize  the  govern 
ment,  and  not  only  the  government,  but  the  executive 
branch  of  it.  The  Spooner  bill  which  invested  the 
executive  with  powers  equal  to  any  sovereign  on  earth 
was  the  proper  sequence  of  the  plan.  And,  moreover, 
it  was  brought  about  by  the  congress  as  the  Roman 
senate  surrendered  its  powers  to  Augustus.  True, 
the  congress  might  repeal  the  Spooner  bill,  but  the 
executive  might  veto  the  repeal.  So  how  is  the  con 
gress  to  retrieve  its  constitutional  vigor. 

Heretofore  the  United  States  have  been  humanitar 
ian  in  their  spirit,  but  now  they  are  governmental.  Im 
perialism  is  anti-humanitarian;  the  conquest  of  peo- 

156 


THE  PHILIPPINE  CONQUEST. 

pie  is  anti-hurnamtarian ;  the  taxing  of  people  as 
the  Filipinos  are  taxed  is  anti-humanitarian.  In  short, 
the  republican  party  now  stands  for  might,  for  power, 
for  glory,  not  realizing — or  if  realizing  not  caring — 
that  the  anti-humanitarian  spirit  and  the  passion  for 
glory  and  power  destroyed  the  governments  of  the 
past  and  is  hastening  the  destruction  of  those  of  the 
present.  That  at  the  bottom  was  the  real  trouble, 
and  that  is  the  virus  that  has  found  lodgment  among 
us.  For  while  life  is  essentially  selfish  as  a  condition 
of  self-preservation  it  consists  with  the  passion  for 
justice  which  both  men  and  nations  must  observe  or 
suffer  the  sure  penalty.  At  last  it  will  fully  leak  out 
and  be  understood  by  all  men  that  the  supreme  court 
upheld  the  new  policy  on  apparent  grounds  of  expe 
diency.  It  will  be  generally  understood  that  the  in 
fluences  which  had  set  in  and  which  had  affected 
every  department  of  the  government  were  too  power 
ful  for  so  worldly  a  tribunal  to  resist.  For  that  court 
said  in  about  so  many  words  that  the  Porto  Rican 
tax  must  be  constitutional,  because  otherwise  the 
United  States  could  not  safely  retain  the  islands,  and, 
besides,  any  other  construction  might  obstruct  future 
acquisitions.  The  supreme  court  asks  how  can  the 
Porto  Rican  tax  be  unconstitutional,  since  to  hold  it  so 
would  be  to  deprive  the  government  of  that  discretion 
ary  power  absolutely  necessary  to  profitably  hold  to 
the  islands.  The  spirit  of  this  reasoning  will  event 
ually  produce  wide  national  consequences. 

All  things  having  worked  out  so  well  to  this  pass, 
the  accession  of  Mr.  Roosevelt  to  the  presidency  was 
dramatically  fitting.  If  made  to  order  it  could  not 

157 


THE  PHILIPPINE  CONQUEST. 

have  been  better.  He  will  pass  into  history  as  the 
contemporary  of  Kipling  and  William  of  Germany. 
He  is  of  them  and  of  their  spirit  and  day.  Some  hoped 
that  Mr.  Roosevelt  would  throw  his  power  on  the  side 
of  idealism  and  progress.  But  they  should  have  re 
membered  that  he  repudiated  his  literary  productions 
in  the  campaign  of  1900.  All  his  fine  pretensions  went 
the  way  of  the  world ;  nor  in  any  event  is  he  the  man 
to  stand  out  against  the  accumulated  influences  of  im 
perialism.  He  has  and  will  add  to  them.  For,  un 
speakable  as  was  the  assassination  of  Mr.  McKinley, 
it  was  not  political,  and  it  cannot  in  candor  be  made 
the  popular  opportunity  for  suppressing  the  freedom 
of  speech.  It  is  very  significant  also  that  Mr.  Roose 
velt  should  inform  us  that  such  tragic  episodes  will 
merely  result  in  the  accession  of  men  to  the  presi 
dency  who  are  merciless  and  resolute.  How  is  such 
a  deplorable  change  to  come  about?  How  shall  we 
descend  from  a  Washington  to  an  Alexander  of  Far- 
nese?  And  why  should  he  tell  us  that  the  one  lurid 
moment  of  anarchistic  triumph  would  be  followed  by 
centuries  of  despotism?  Is  the  republic  on  so  rock 
ing  a  foundation  as  this? 

And  how  is  that  despotism  to  come  about?  Will 
he  be  a  party  to  it,  or  will  he  in  any  supreme  moment 
of  moral  trial  return  to  the  apothegms  of  his  books  and 
say,  as  he  has  often  said,  "We  have  work  to  do  and 
the  only  question  is  whether  we  will  do  it  well  or  ill?" 
It  is  now  his  time  to  invoke  the  humanitarian  spirit 
and  turn  from  power  and  glory  if  he  v/ould  give  the 
world  the  moral  impulse  that  men  of  his  own  race 
gave  to  the  world  centuries  ago.  Otherwise,  if  cen- 

158 


THE  PHILIPPINE  CONQUEST. 

tralization  in  government  continues  and  the  people 
are  more  generally  deprived  of  the  chance  to  obey 
the  better  instructions  of  their  natures  what  may  be 
expected?  Not  merely  a  return  to  the  method  of  se 
lecting  presidential  electors  by  the  legislatures,  as 
was  formerly  done,  and  the  rise  of  a  man  merciless  and 
resolute  to  the  presidency.  A  greater  reaction  than  this 
may  be  expected. 

There  is  a  commonplace  optimism  which  insists  that 
either  everything  is  for  the  best  or  that  the  right 
is  predestined  to  triumph.  Both  propositions  are 
false.  Very, many  things  are  for  the  worse.  Whole 
nations  have  gone  down  to  destruction  as  the  result 
of  the  excesses,  the  follies  and  the  villainies  of  aris 
tocracies. 

That  nothing  can  be  hoped  for  from  the  present  ad 
ministration ;  that  its  ideals  are  wholly  wrong;  that 
its  desires  are  selfish,  reactionary  and  despotic,  and 
that  it  is  capable  of  any  perfidy,  is  a  pardonable  pes 
simism.  The  optimism  to  be  cherished  consists  in 
the  belief  that  democracy  is  not  the  battle  cry  of  a 
fraction  of  men,  but  that  it  is  a  passion,  a  philosophy, 
an  ineradicable  aspiration  of  the  human  heart.  Armies 
and  navies  may  be  created  and  the  people  may  be 
taxed  to  support  them;  expensive  flummery  and  glit 
ter  may  be  maintained  out  of  the  sweat  of  labor.  All 
of  this  may  be  used  to  trample  down  justice  and  to 
despoil  a  helpless  race.  And  yet  in  the  heart  of  the 
humblest  man  there  remains  the  belief  that  he  has  a 
right  in  this  world  to  live,  to  labor,  to  earn  and  be 
free.  The  most  ignorant  tribes  of  the  Filipinos  are 
equal  in  intelligence  to  the  natives  of  Britain  in  the 

159 


THE  PHILIPPINE  CONQUEST. 

days  of  the  glorious  Julius.  Who  knows  what  use 
the  Filipinos  may  make  of  our  ideals  and  the  spirit  of 
freedom  which  vibrates  in  their  hearts  today?  And 
who  knows  what  will  be  the  relative  positions  of  the 
Philippine  islands  and  what  we  now  call  the  United 
States  1,000  years  hence?  The  thought  should  teach 
humility.  For  did  Augustus  imagine  that  the  un 
conquerable  Belgae  would  found  a  great  republic,  or 
that  the  savages  in  the  worthless  islands  north  of 
Gaul  would  produce  those  great  luminaries  of  civiliza 
tion  before  whom  Cicero  and  Virgil  pale  their  inef 
fectual  fires? 


1 60 


THE  NEW  POLICY. 

Since  the  campaign  of  1900  a  good  deal  has  been 
spoken  and  written  concerning  the  plight  of  the  demo 
cratic  party.  That  of  itself  can  be  of  little  conse 
quence  except  as  that  plight  affects  those  principles 
upon  which  the  welfare  of  the  whole  people  depends. 
But  in  so  far  as  democratic  defeat  has  introduced  mis 
chievous  and  perilous  conditions  into  American  polity, 
the  plight  of  that  party  must  come  home  to  all  Amer 
icans  with  a  message  of  grave  significance. 

The  republic  was  born  of  political  idealism.  If  it 
had  sprung  from  expediency — that  is,  from  a  desire 
to  put  away  present  evil — nothing  more  would  have 
been  necessary  than  a  declaration  of  war  against 
Great  Britain.  Such  a  declaration  could  have  been 
made  good  by  force  of  arms.  And  a  government  of 
some  form  could  have  been  founded  growing  out  of 
the  mere  selfish,  but  proper,  impulse  on  the  part  of 
our  forefathers  to  have  a  government  of  their  own. 
But  our  forefathers  went  much  farther  than  that. 
They  spoke  not  only  for  themselves,  but  for  all  peo 
ple  and  for  all  time.  They  laid  down  political  prin 
ciples  in  precise  and  comprehensive  language.  Were 
those  principles  true?  The  English  derided  them,  al 
though  we  are  told  that  "there  are  certain  principles 
of  natural  justice  inherent  in  the  Anglo-Saxon  charac 
ter  which  need  no  expression  in  constitutions."  The 

161 


THE  NEW  POLICY. 

English  found  a  violent  conflict  between  the  utterances 
of  the  declaration  of  independence  and  those  "prin 
ciples  of  justice  inherent  in  the  Anglo-Saxon  charac 
ter."  It  resulted  that  the  declaration  triumphed 
through  war  over  those  Anglo-Saxon  principles  and 
the  republic  was  born. 

But  after  these  things  had  happened  did  the  fath 
ers  go  about  to  construct  a  government  which  could 
perpetrate  against  some  other  people  the  oppressions 
which  the  English  had  perpetrated  upon  them?  Was 
it  only  their  taxation  without  representation  which 
constituted  tyranny?  And  did  they  immediately  put 
into  action  a  government  which  could,  according  to 
expediency,  tax  some  other  people  without  representa 
tion?  It  is  to  this  pass  of  vulgarity  and  cynicism  that 
the  argument  is  reduced  which  seeks  to  extract  from 
the  silence  of  the  constitution  a  power  in  congress  to 
tax  the  Porto  Ricans  without  representation. 

The  words  liberty  and  freedom  are  \vords  of  gen 
eral  significance  and  mean  everything  or  nothing,  ac 
cording  to  the  peculiar  views  of  him  who  uses  them. 
They  are  found  in  magna  charta.  But  magna  charta 
did  not  prevent  James  II  from  overriding  the  most 
sacred  rights  of  liberty.  This  infamous  despot  habit 
ually  assured  the  English  people  that  he  stood  for  lib 
erty  even  while  a  slavish  parliament  cooperated  with 
him  in  the  destruction  of  human  rights  and  human  life. 
This  was  only  a  little  over  200  years  ago  and  "the 
principles  of  natural  justice  inherent  in  the  Anglo- 
Saxon  character"  laid  no  obstacles  in  the  way  of  the 
bloody  assize  and  the  temporary  extinguishment  of 
every  ray  of  liberty.  Except  for  the  infusion  of  re- 

162 


THE  NEW  POLICY. 

publicanism  which  came  with  William  from  Holland 
the  English  would  have  had  no  more  to  boast  of  in 
the  way  of  inherent  principles  than  the  Russians.  And 
the  English  constitution  would  have  been  even  more 
vague  and  elastic  than  it  is. 

When  our  fathers  adopted  the  constitution  the  Eng 
lish  parliament,  in  the  language  of  Mr.  Bryce,  had 
the  same  powers  which  it  has  today,  as  follows:  "It 
can  make  and  unmake  any  and  every  law,  change  the 
form  of  the  government  or  the  succession  to  the  crown, 
interfere  with  the  course  of  justice,  extinguish  the  most 
sacred  private  rights  of  the  citizen.  Between  it  and 
the  people  at  large  there  is  no  legal  distinction.  It 
is,  therefore,  within  its  sphere  of  law  irresponsible 
and  omnipotent/' 

Did  the  fathers  then  intend  to  make  congress  an 
"irresponsible  and  omnipotent"  body  upon  the  theory 
that  those  "principles  of  natural  justice"  would  be  suf 
ficient  limitation  upon  congressional  despotism?  That 
is  the  argument,  and  that  is  the  theory  upon  which 
the  Porto  Rican  tariff  was  sustained  by  the  supreme 
court. 

The  opinion  of  the  court  delivered  by  Mr.  Justice 
Brown  is  historically,  legally,  politically  and  ethically 
false.  It  is  a  tissue  of  sophistry.  It  is  a  jumble  of 
assumption.  It  is  a  flat  reversal  of  all  former  decisions. 
It  overrides  the  solemn  deliberations  of  the  fathers. 
It  incurs  the  sound  reasonings  of  Jefferson,  Madison, 
Marshall,  Webster,  Story,  Lincoln  and  Taney.  It 
flies  in  the  face  of  common  sense.  It  twistifies  and 
splits  the  English  language  into  meaningless  refine 
ments  in  an  endeavor  to  overcome  palpable  and  indub- 

163 


THE  NEW  POLICY. 

itable  truths  written  in  language  which  does  not  ad 
mit  of  doubt.  Its  basic  assumption  is  that  the  United 
States  can  do  anything  that  any  other  nation  can  do. 
Syllogistically  expressed  Russia,  Germany  or  England 
as  sovereign  powers  can  grab  islands,  rule  subjects 
and  exploit  them.  The  United  States  are  sovereign, 
and,  therefore,  they  can  do  whatever  Russia,  Germany 
or  England  can  do.  It  is  obvious  at  a  glance  that 
the  minor  premise  is  false,  and  not  only  has  never 
before  been  pronounced  by  the  supreme  court,  but  is 
far  beyond  the  wildest  declarations  of  the  maddest 
Hamiltonian  up  to  this  day.  Even  Marshall  when 
validating  the  United  States  bank  did  it  in  the  name 
of  the  constitution  and  under  an  assumed  power  of 
the  constitution;  while  the  Porto  Rican  tariff  is  vali 
dated  in  spite  of  the  constitution.  In  the  bank  case 
Marshall  said:  "Let  the  end  be  legitimate,  let  it  be 
within  the  scope  of  the  constitution,  and  all  means 
which  are  appropriate  which  are  plainly  adapted  to 
that  end,  which  are  not  prohibited,  but  consist  with 
the  letter  and  spirit  of  the  constitution  are  constitu 
tional."  Mr.  Justice  Brown  says  the  United  States 
are  as  sovereign  as  any  nation  and  "we  decline  to  hold 
that  there  is  anything  in  the  constitution  to  prevent 
such  action" — namely,  taxation  without  representa 
tion. 

In  the  first  place  the  United  States  have  sovereign 
powers  only  within  their  sphere  of  constitutional 
grant,  and,  second,  the  question  cannot  be  disposed 
of  by  the  statement  that  there  is  nothing  in  the  con 
stitution  to  prevent  such  action.  Is  there  anything 
in  the  constitution  to  permit  such  action,  either  in 

164 


THE  NEW  POLICY. 

letter  or  spirit?  That  is  the  question  which  we  have 
been  taught  by  this  court  and  constitutional  writers 
to  apply  to  any  course  of  congressional  or  executive 
polity. 

Said  Marshall:  "The  government  of  the  United 
States  is  emphatically  and  truly  a  government  of  the 
people.  In  fact  and  substance  it  emanates  from 
them;  its  powers  are  granted  by  them  and  for  their 
benefit.  This  government  is  acknowledged  by  all  to 
be  one  of  enumerated  powers.  The  principle  that  it 
can  only  exercise  the  powers  granted  to  it  would  seem 
too  apparent  to  have  required  to  be  urged  by  all  these 
arguments,  which  its  enlightened  friends,  while  it  was 
pending  before  the  people,  found  it  necessary  to  urge." 
Again  Marshall  said :  "The  government  of  the  United 
States  can  claim  no  powers  which  are  not  granted 
to  it  by  the  constitution,  and  the  powers  actually 
granted  must  be  such  as  are  expressly  given,  or  given 
by  necessary  implication." 

Mr.  Story:  "The  constitution  was  from  its  very 
origin  contemplated  to  be  the  frame  of  a  national  gov 
ernment  of  special  and  enumerated  powers  and  not  of 
general  and  unlimited  powers." 

Mr.  Webster  in  1848.  "Arbitrary  governments  may 
have  territories  and  distant  possessions,  because  ar 
bitrary  government  may  rule  them  by  different  laws 
and  different  systems.  We  cannot  do  such  things. 
They  must  be  of  us,  part  of  us,  or  else  strangers." 

William  H.  Seward— "The  framers  of  the  constitu 
tion  never  contemplated  colonies  or  provinces  or  ter 
ritories.  They  contemplated  nothing  but  sovereign 


165 


THE  NEW  POLICY. 

Mr.  Cooley— "The  government  of  the  United  States 
is  one  of  enumerated  powers,  the  national  constitu 
tion  being  the  instrument  which  specifies  them  and 
in  which  authority  should  be  found  for  the  exercise 
of  any  power  which  the  national  government  assumes 
to  possess.  In  this  respect  it  differs  from  the  con 
stitutions  of  the  several  states,  which  are  not  grants 
of  power  to  the  state,  but  which  apportion  and  impose 
restrictions  upon  the  powers  which  the  states  inher 
ently  possess." 

The  republican  party  in  1860 — "That  we  recognize 
the  great  principles  laid  down  in  the  immortal  declara 
tion  of  independence  as  the  true  foundation  of  demo 
cratic  government,  and  we  hail  with  gladness  every 
effort  toward  making  these  principles  a  living  reality 
on  every  inch  of  American  soil." 

The  supreme  court  in  1897 — ."Absolute  arbitrary- 
power  exists  nowhere  in  this  free  land.  The  author 
ity  of  the  United  States  must  be  found  in  the  constitu 
tion." 

The  constitution  itself — "The  powers  not  delegated 
to  the  United  States  by  the  constitution  nor  prohibit 
ed  by  it  to  the  states  are  reserved  to  the  states  re 
spectively  or  the  people." 

But  there  is  an  embarrassment  of  riches.  Up  to 
the  Downes  decision  the  constitutional  test  of  a  law 
was  found  in  the  words  of  Marshall  already  quoted. 
The  end  must  be  legitimate;  it  must  be  within  the 
scope  of  the  constitution;  the  means  must  be  plainly 
adapted  to  the  end ;  the  means  must  not  be  prohibited 
by  the  constitution,  but  must  consist  with  the  letter 
and  spirit  of  the  constitution,  while  under  the  Downes 

166 


THE  NEW  POLICY. 

decision  any  law  which  any  sovereign  power  can  en 
act  and  which  is  not  prohibited  by  the  constitution 
is  constitutional.  Here  is  a  formula  of  revolution  as 
complete  as  the  most  rabid  monocrat  could  desire. 

The  old  strict  constructionists  were  accused  of  hold 
ing  that  the  congress  could  pass  no  law  unless  the 
constitution  expressly  authorized  it.  The  principle  of 
the  Downes  case  is  strict  construction  on  the  reverse 
side.  It  declares  that  congress  can  pass  any  law 
which  the  constitution  does  not  expressly  inhibit.  It 
follows  that  the  only  limitations  upon  congress  are 
expressed  in  the  bill  of  rights  and  in  a  few  other 
negative  clauses.  Otherwise  it  is  as  powerful  as  the 
British  parliament,  which  is  also  in  theory  restrained 
by  a  bill  of  rights.  And,  this  being  true,  this  con 
gress  can  mount  upon  the  ruins  of  a  constitutional  re 
public  and  unfurl  the  banner  of  empire.  Its  power 
does  not  consist  within  grants  and  prohibitions,  nor 
yet  within  the  implied  powers  of  Marshallism.  It  has 
marched  up  to  that  domain  where  it  is  not  expressly 
prohibited  from  going  and  has  claimed  every  power 
not  expressly  denied  to  it. 

In  a  sort  of  way  the  American  people  elect  their 
senators;  in  truth  and  in  fact  they  elect  their  repre 
sentatives.  They  are  sent  to  Washington,  where,  be 
fore  entering  upon  their  duties,  they  take  an  oath  to 
support  the  constitution.  If  our  senators  and  con 
gressman  have  power  to  pass  such  laws — as  the  su 
preme  court  says  they  have — as  the  Porto  Rican  bill, 
where  did  they  get  it?  It  is  not  claimed  that  they  got 
it  from  the  constitution.  They  cannot  get  it  from 
the  states,  because  the  supreme  court  expressly  says 

167 


THE  NEW  POLICY. 

that  the  states  never  at  any  time  had  power  to  acquire 
territory.  They  did  not  get  it  from  the  people  be 
cause  that  could  not  be  done  only  through  a  constitu 
tional  amendment.  The  question,  then,  remains, 
Where  did  they  get  it?  Under  the  Porto  Rican  bill, 
so  validated  by  the  supreme  court,  we  have  left  a  con 
stitution  which  is  effective  so  far  as  it  expressly  re 
strains  congress,  and  for  the  rest  we  have  "principles 
of  natural  justice  inherent  in  the  Anglo-Saxon  charac 
ter."  Meantime,  Mr.  McKinley  tours  the  country  and 
in  effect  assures  the  American  people  that  their  rights 
will  remain  as  formerly.  There  will  be  no  change  at 
home.  We  have  bartered  a  written  constitution  for 
inherent  Anglo-Saxon  principles  and  executive  reas 
surances. 

Conceding  the  narrow  contention  that  the  congress 
is  not  prohibited  from  taxing  the  inhabitants  of  an 
appurtenant  territory  according  to  the  uniformity 
clause  of  the  constitution,  must  not  a  law,  according 
to  Marshall,  consist  with  the  letter  and  spirit  of  the 
constitution?  If  the  United  States  were  a  despotism 
or  a  monarchy  the  argument  would  be  sound.  To  in 
terpret  a  law  of  a  despotic  government  in  favor  of 
despotism  is  perfectly  consistent.  But  it  is  another 
thing  to  interpret  the  constitution  of  a  republic  in 
favor  of  despotism.  It  must  be  interpreted  in  favor 
of  republicanism  to  be  consistent.  Therefore, 
the  question  is  not  in  its  nature  purely  constitutional. 
It  is  also  fundamental.  A  republic  by  its  inherent 
nature  possesses  certain  characteristics.  It  has  a 
spirit,  which  is  liberty.  Its  very  being  consists  in  a 
rule  of  the  people.  A  republic  that  stands  for  liberty 

168 


THE  NEW  POLICY. 

at  home  and  tyranny  abroad  £s  to  people  who  cannot 
defend  themselves  has  to  that  extent  ceased  to  be  a 
republic.  Its  own  people  may  well  be  alarmed  for 
their  own  liberties  which  are  begun  to  be  pledged  to 
them  in  executive  assurance  and  "principles  of  jus 
tice  inherent  in  the  Anglo-Saxon  character"  decreed 
by  the  supreme  court. 

But  how  soon  have  come  true  all  the  prophecies  of 
democracy  touching  this  miserable  complication! 
Democracy  attacked  the  validity  of  the  treaty  of  Paris 
on  the  plain  ground  that  the  acquisition  of  distant  is 
lands  peopled  by  alien  races  was  not  an  exercise  of 
constitutional  power  and  was  repugnant  to  the  spirit 
of  a  republic.  Mr.  Story  had  so  declared  in  his  great 
work  on  the  constitution.  Montesquieu  had  consid 
ered  that  question  in  detail.  And  now  one  of  the 
reasons  for  not  sustaining  the  ex  proprio  vigore  doc 
trine  concerning  the  constitution  is  stated  by  Mr.  Jus 
tice  Brown  to  be  that  the  executive  and  the  senate 
should  not  be  given  the  power  to  incorporate  alien 
races  into  the  American  system  by  the  mere  fiat  of  a 
treaty.  Mr.  Story  wrote :  "If  congress  have  the  pow 
er  it  may  unite  any  foreign  territory  whatever  to  our 
own,  however  distant,  however  populous  and  however 
powerful.  Under  the  form  of  cession  we  may  become 
united  to  a  more  powerful  neighbor  or  rival  and  be 
involved  in  European  or  other  foreign  interests."  But 
all  authority,  all  reason  were  brushed  aside.  And  not 
only  is  the  treaty  to  stand,  ratified  by  the  whole  con 
gress,  so  far  as  the  lower  branch  can  ratify  it,  but 
legislation  is  to  stand  of  a  character  which  provoked 
the  American  colonies  to  war  in  1776.  And  because 


THE  NEW  POLICY. 

the  constitution  is  silent  on  the  question  the  high 
handed  and  revolutionary  proceeding  is  to  be  validated 
which,  according  to  all  authority,  tends  to  overthrow 
and  not  to  perpetuate  the  republic.  That  a  congress 
can  legislate  so  as  to  overthrow  the  republic  is  some 
what  repugnant  to  the  great  argument  oF  Mr.  Web 
ster.  Democracy  contended  that  these  people  could 
not  be  citizens  without  imperiling  our  own  civiliza 
tion.  And  the  supreme  court  says  that  is  true.  De 
mocracy  said  that  they  could  not  be  subjects  without 
undermining  the  republic;  nor  without  depositing  in 
its  body  the  germ  of  constitutional  destruction.  And 
the  supreme  court  offers  the  people  "principles  of  jus 
tice  inherent  in  the  Anglo-Saxon  character."  The 
administration,  backed  by  the  supreme  court,  assures 
the  American  people  that  these  races  shall  have  all 
the  liberty  they  are  capable  of  enjoying.  Democracy 
contended  that  even  with  steam  and  electricity  the 
control  of  these  distant  islands  would  aggrandize  the 
power  of  the  executive,  and  the  Spooner  bill  demon 
strated  the  truth  of  that  contention.  So  that  every 
objection,  though  loudly  derided  at  the  time,  became 
verified  in  a  few  months. 

Even  Mr.  Roosevelt  as  a  constitutional  historian 
had  declared  that  a  republic  could  acquire  noth 
ing  but  contiguous  territory  capable  of  being  formed 
into  states;  and  that  such  territory  must  be  peopled 
not  at  all,  or  by  the  white  race  fit  to  be  incorporated 
into  the  American  system.  But  he  toured  the  coun 
try  declaring  in  effect  that  he  himself  was  antedated. 
All  events  have  shown  that  he  was  correct  when  he 
was  not  seeking  office.  Democracy  contended  from 

170 


THE  NEW  POLICY. 

the  first  that  the  whole  scheme  was  a  renaissance  of 
mercantile  colonialism;  and  the  Porto  Rican  bill 
proved  it.  And  thus  it  was  demonstrated  that  the 
American  republic  in  an  hour  of  test  did  not  have 
the  moral  reserve  to  stand  by  its  principles.  It  went 
to  war  to  free  an  oppressed  people  and  then  turned 
oppressor  and  sunk  to  the  level  of  other  sovereign 
powers  in  a  vulgar  and  wholly  mistaken  scheme  of 
acquiring  national  wealth. 

And  now  in  what  plight  are  the  American  people? 
They  had  nothing  to  do  with  the  treaty.  It  was  for 
mulated  secretly  by  commissioners  in  Paris;  it  was 
consented  to  by  a  body  that  they  do  not  elect.  The 
Porto  Rican  bill  was  enacted  under  the  party  lash. 
It  was  validated  by  a  court  that  is  as  independent  of 
their  choice  as  an  hereditary  monarch.  The  question 
of  the  acquisition  or  retention  of  the  islands  has  never 
been  passed  upon  at  the  polls,  and  after  the  election 
the  Spooner  bill  created  executive  imperialism.  The 
supreme  court  has  created  congressional  imperialism. 
What  are  you  going  to  do  about  it?  What  are  you  going 
to  do  about  these  events  that  follow  so  swiftly  one  after 
another  and  that  will  continue  to  occur?  When  will 
the  supreme  court  catch  up  with  the  administration 
even  if  it  was  opposed  to  imperialism?  What  has  be 
come  of  your  republic  in  four  years?  The  fact  is  the 
republican  party  never  since  the  days  of  Lincoln  has 
had  any  principle  whatever  on  any  subject.  It  never 
had  any  theory  of  government  except  what  it  bor 
rowed  from  Jefferson.  It  rode  into  power  on  the 
declaration  of  independence  and  when  it  abandoned 
the  declaration  through  the  ascendancy  of  rapacious 

171 


THE  NEW  POLICY. 

federalism  it  went  plumb  into  monarchy  and  has  ever 
since  hidden  its  designs  from  the  people  under  the 
garb  of  holiness  and  patriotism.  It  temporized  with 
the  tariff  question  and  met  it  on  terms  of  expediency ; 
it  practiced  expediency  with  the  money  question,  and 
at  all  times  it  has  followed  the  trail  of  toryism  and 
monarchy.  It  has  built  up  its  leaders  through  special 
privilege  and  it  has  debauched  its  followers  with  the 
argument  that  the  government  exists  to  support  the 
people.  It  has  awakened  anarchy  and  touched  into 
life  that  very  socialism  which  it  pretends  to  abhor. 

And  so  what  does  the  paramount  party  care  about 
such  rights  as  freedom  of  speech  and  of  the  press  so 
long  as  it  can  wring  tribute  from  dependent  people? 
They  may  rail  and  write  as  they  please  against  this 
great  vulgar  government.  They  may  have  the  habeas 
corpus,  too.  Individual  judges  in  the  far  islands  act 
ing  under  central  orders  will  whittle  away  that  and 
every  other  right  in  individual  cases  as  circumstances 
require ;  and  they  will  do  it  under  that  unknown  clause 
of  the  constitution  which  makes  the  United  States  as 
sovereign  as  any  other  nation.  A  party  that  taxes 
without  representation  will  also  deprive  of  life  and 
property  without  due  process  of  law.  The  negative 
prohibitions  of  the  constitution  are  not  so  much  as 
pack  thread  about  the  arms  of  a  republican  congress. 

The  plight  of  the  American  people  consists  in  this, 
that  no  peculation  of  any  official,  no  disregard  of 
plain  duty,  no  breach  of  expressed  faith  with  Cuba, 
no  act  of  despotism  toward  our  insular  possessions, 
no  disregard  of  the  constitution,  finds  any  response  of 
rebuke  in  the  breast  of  the  republican  party.  It  is 

172 


THE  NEW  POLICY. 

so  sunk  in  the  depths  of  infamy  that  no  imagined 
revolution,  with  all  the  accompaniments  of  monarchy, 
would  arouse  that  party  to  protest.  Things  never 
feared  but  spoken  of  by  the  fathers  as  impossible  to 
our  system  have  come  to  pass.  Colonialism  is  vali 
dated  on  the  expressed  ground  of  expediency  and  there 
is  rejoicing.  Retrogression  is  hailed  as  progress.  All 
the  vilest  elements  of  human  nature  are  sent  whirling 
to  the  top  of  national  life — cupidity,  hypocrisy,  dis 
honesty,  tyranny  and  debauchery;  we  behold  the  de 
struction  of  ideals,  the  withering  of  character  and 
morality  and  there  is  no  protest,  but  rejoicing.  The 
hideous  specter  of  slavocracy  has  been  tempted  from 
the  tomb  to  revisit  the  gimpses  of  this  era  and  a  por 
tion  of  the  work  that  this  very  republican  party  came 
into  being  to  perform  is  being  swept  away  amid 
shouts  of  the  administration. 

That  corporations  are  corrupt,  that  they  debauch 
every  branch  of  the  government  has  passed  into  the 
domain  of  jest  and  is  tossed  about  in  a  spirit  of  hu 
morous  comment.  Our  officials  are  openly  accused 
of  dishonesty  and  corruption  by  the  leading  journals 
and  it  is  accepted  at  large  as  a  commonplace.  The 
people  are  suspicious  of  their  legislators  and  their 
courts.  Everyone  knows  that  the  Filipinos  were  our 
allies  and  that  we  betrayed  them;  that  we  broke  our 
word  with  Cuba  and  that  the  course  of  the  president 
has  been  uncandid  and  inconsistent.  One  of  the 
great  papers  declared  that  the  decision  of  the  supreme 
court  was  smeared  with  tobacco  and  sugar.  And 
against  this  resistless  tide  of  evil  who  will  remain  true 
to  the  ideals  of  morality  except  the  strongest  swim- 

173 


THE  NEW  POLICY. 

mers?  Moreover,  amidst  all  this  there  is  a  lament 
able  lack  of  good  sense.  Prosperity  is  measured  by 
the  ability  of  the  seller  to  advance  the  price  and  not 
by  the  ability  of  the  purchaser  to  buy.  It  is  measured 
by  the  activity  of  monopolists,  not  by  the  normal  ac 
tivity  of  the  people  at  large.  It  is  measured  by  the 
extent  to  which  capital  consents  to  the  employment 
of  labor,  not  by  the  demand  which  the  consumer  calls 
upon  the  producer  to  produce. 

But  to  hold  society  together  there  must  be  some  en 
forcement  of  law.  So  that  pinochle  and  larceny  will 
be  vigorously  punished,  while  gambling  in  grain,  mo 
nopolistic  extortion,  slaughter  of  inferior  peoples  and 
other  things  which  extend  civilization  will  proceed 
without  interruption. 

And  what  is  the  conclusion  that  is  forced  upon  men? 
These  degeneracies  have  been  treated  with  ideals  and 
the  disease  has  steadily  grown  worse.  Was  not  slav 
ery  destroyed  by  ideals?  History  answers  this  ques 
tion  in  the  negative  and  by  so  answering  it  declares 
that  civilization  has  not  yet  reached  the  point  where 
ideals  are  sufficient  to  work  reforms.  Slavery  was 
destroyed  by  the  power  of  money.  Slavery  was  un 
economic.  It  crushed  the  south;  it  interfered  with 
the  rights  of  white  labor.  Yet  at  this  the  time  of  its 
overthrow,  economically  speaking,  had  not  come  in 
Lincoln's  day.  For  slavery  was  still  profitable  to  the 
mercantilists  in  the  north  and  in  England.  Lincoln 
would  not  have  been  elected  except  for  a  split  in  the 
democratic  party.  In  fact,  he  received  the  smallest 
per  centum  of  the  vote  of  any  candidate  ever  elected  by 
the  American  people.  Colonialism  does  not  pay;  it 

174 


THE  NEW  POLICY. 

never  paid  any  country.  It  is  profitable  only  to  the 
privileged  few.  But  colonialism  cannot  be  destroyed 
until  the  forces  of  plutocracy  become  divided  or  until 
its  uneconomic  features  bear  hard  enough  upon  a  suf 
ficient  number  of  people  to  win  them  back  to  the  ways 
of  a  plain  but  virtuous  republic.  Ideals  will  not  do. 
We  have  seen  that  ideals  are  as  flax  to  the  fire  in 
a  day  when  men  are  hungry  for  money. 


175 


POLITICAL  TENDENCIES. 

Webster,  in  his  great  political  speech  delivered  in 
New  York  March  15,  1837,  use<3  the  following  lan 
guage  in  commenting  upon  what  is  now  termed  the 
"constitutional  march" :  "A  gentleman,"  said  he,  "not 
now  living,  wished  very  much  to  vote  for  the  estab 
lishment  of  a  bank  of  the  United  States,  but  he  al 
ways  stoutly  denied  the  constitutional  power  of  the 
United  States  to  create  such  a  bank.  The  country, 
however,  was  in  a  state  of  great  financial  distress, 
from  which  such  an  institution,  it  was  hoped,  might 
help  to  extricate  it,  and  this  consideration  led  the 
worthy  member  to  review  his  opinions  with  care  and 
deliberation.  He  came  satisfactorily  to  the  conclusion 
that  congress  might  incorporate  a  bank.  The  power, 
he  said,  to  create  a  bank  was  either  given  to  congress 
or  it  was  not  given.  Very  well.  If  it  was  given  con 
gress,  of  course,  could  exercise  it;  if  it  was  not  given 
the  people  still  retained  it,  and  in  that  case  congress, 
as  the  representative  of  the  people,  might  upon  an 
emergency  make  free  use  of  it."  Continuing  the  bit 
ter  irony,  Webster  said:  "Arguments  and  conclusions 
in  substance  like  these,  gentlemen,  will  not  be  want 
ing  if  men  of  great  popularity,  commanding  charac 
ters,  sustained  by  powerful  parties  and  full  of  good 
intentions  toward  the  public,  may  be  permitted  to  call 
themselves  universal  representatives  of  the  people." 

176 


POLITICAL  TENDENCIES. 

It  is  the  argument  that  a  given  thing  must  be  done 
and,  therefore,  that  there  must  be  constitutional  power 
to  do  it  that  has  led  to  nearly  all  the  trespasses  upon 
the  organic  law.  For  instance,  listen  to  the  reason 
ing  in  the  decision  in  the  insular  cases :  "A  false  step 
at  this  time,"  said  Mr.  Justice  Brown,  "might  be  fatal 
to  the  development  of  what  Chief  Justice  Marshall 
called  the  American  empire.  Choice  in  some  cases, 
the  natural  gravitation  of  small  bodies  toward  large 
ones  in  others,  the  result  of  a  successful  war  in  still 
others  may  bring  about  conditions  which  would  ren 
der  the  annexation  of  distant  possessions  desirable." 

How  far  annexation  in  any  case  is  desirable  is  a 
difficult  matter  to  determine.  Can  it  be  gathered  from 
the  inspired  utterances  of  newspapers  or  the  paid  ar 
ticles  in  magazines?  Can  it  be  gathered  from  the  in 
terviews  of  congressmen  and  senators  or  the  prepared 
speeches  of  politicians  engaged  in  creating  a  senti 
ment  of  desire  for  annexation?  Can  the  desire  of  the 
people  be  ascertained  unless  they  express  themselves 
in  a  manner  which  separates  their  consideration  of  an 
nexation  from  their  consideration  of  all  other  ques 
tions?  If,  in  fact,  a  majority  of  the  people  desire  an 
nexation,  and  if  it  be  not  merely  desired  by  a  clique 
of  selfish  commercialists,  is  the  desire  of  a  thing  the 
test  of  constitutionality?  We  can  paraphrase  Web 
ster's  words  as  follows:  "The  power  to  annex  is 
lands  and  govern  them  arbitrarily  outside  of  the  con 
stitution  was  either  given  to  congress  or  it  was  not 
given.  Very  well.  If  it  was  given  congress,  of  course, 
could  exercise  it.  If  it  was  not  given  the  people  still 
retain  it,  and  in  that  case  congress,  as  the  representa- 

177 


POLITICAL  TENDENCIES. 

tive  of  the  people,  might  upon  an  emergency  make 
free  use  of  it,  especially  where  it  is  desirable  and  where 
a  false  step  at  this  time  might  be  fatal  to  acquisitions 
hereafter.'* 

"There  shall  be  no  imperialism,"  said  the  late  Mr. 
McKinley,  "except  the  imperialism  of  the  American 
people,"  which  means  also  that  whatever  the  people 
desire  the  congress  will  do,  congress  or  a  few  privi 
leged  interests  being  the  judge,  however,  of  what  the 
people  desire. 

From  the  mocking  satire  of  Webster  to  the  solemn 
decision  of  Mr.  Justice  Brown  is  a  long  step,  and  yet 
this  is  one  of  the  developments  which  some  men  yet 
living  have  seen  come  to  pass. 

The  arguments  which  were  used  to  create  a  desire 
for  imperialism,  if  there  was  any  real  desire  for  it,  and 
which  were  largely  accepted,  plainly  show  that  the 
present  sociological  state  of  the  American  people  is 
religious  if  not  supernatural.  Many  well-meaning 
people  can  be  won  to  anything  by  the  argument  that 
it  is  predestined  or  that  it  bears  the  evidence  of  a 
providential  dispensation  wonderful  and  particular. 
This  appeals  to  the  imagination  and  stirs  the  dramatic 
sense  more  or  less  active  in  all  men.  And  though  we 
no  longer  beat  tomtoms  to  drive  away  eclipses  nor 
attribute  pestilence  to  the  wrath  of  demons  and  in 
general  have  installed  law  and  order  where  caprice  and 
accident  formerly  held  sway,  yet  nevertheless  when 
a  certain  class  of  thinkers  deals  with  the  actions  of 
large  bodies  of  men,  whether  as  nations  or  armies, 
their  imaginations  carry  them  completely  away.  If 
Admiral  Dewey  steers  into  the  harbor  of  Manila  with- 

178 


POLITICAL  TENDENCIES. 

out  accident  and  defeats  the  Spaniards  it  is  providen 
tial. 

The  Boers  and  the  Britons  prayed  to  the  same  God, 
yet  the  victory  was  providential  and  predestined.  A 
few  diplomats  struck  with  the  commercial  advantages 
of  the  Philippine  islands  negotiate  for  their  cession  in 
the  same  deliberate  way  that  an  individual  buys  out 
a  business,  and  the  cry  is  set  up  that  they  came  to  our 
hands  by  the  act  of  God.  "Whether  we  are  glad  or 
sorry,"  says  Mr.  Roosevelt,  "that  events  have  forced 
us  to  go  there  is  aside  from  the  question.  The  point 
is  that  as  the  inevitable  result  of  the  war  with  Spain 
we  find  ourselves  in  the  Philippines." 

It  is  the  invention  of  such  fictions  as  these  and  their 
explanation  upon  a  supernatural  basis  that  enables  a 
few  men  to  use  a  large  contingent  of  well-meaning 
people — people  who  are  carried  away  by  gusts  of  false 
sentiment  which  they  imagine  to  be  pentecostal  visita 
tions  of  the  over-soul.  Is  it  any  wonder  that  the  diplo 
mats  and  empire  builders  laugh  in  their  sleeves  at  the 
people? 

But  as  it  was  our  destiny  to  make  this  "desirable" 
annexation  it  is  also  our  destiny  to  play  a  mighty  part 
hereafter  in  the  history  of  the  world.  There  shall  not 
be  any  longer  a  cowardly  shrinking  from  duty;  for 
woe  or  weal  the  die  is  cast.  It  is  fate.  We  must 
fail  greatly  or  triumph  greatly,  but  great  we  must  be. 
The  past  is  dead ;  our  little  part  of  isolation  is  over.  We 
are  no  longer  the  Maud  Muller  of  nations  drinking 
at  the  well,  ashamed  of  our  calico  gowns  and  sigh 
ing  for  the  city  far  away.  We  have  become  great. 
We  have  painted  our  eyebrows  and  put  on  our  scar- 

179 


POLITICAL  TENDENCIES. 

let  robes,  and,  being  no  longer  a  reproach  or  a  menace 
to  any  other  power,  we  suddenly  find  ourselves  on 
terms  of  kindness  with  all  nations,  except  in  so  far  as 
jealousy  might  be  enkindled  if  expected  favors  should 
not  be  distributed  with  a  decent  regard  to  circum 
stances. 

Yet  all  this  talk  about  this  nation  having  suddenly 
become  an  influence  in  the  world  is  merely  a  piping 
upon  penny  whistles.  For  that  matter  the  United 
States  were  a  world  power  in  1776.  The  American 
revolution  established  the  French  republic  and  shook 
every  throne  in  Europe.  The  struggle  of  our  people 
in  the  war  for  independence  resulted  in  greater  rights 
to  every  man  in  Europe,  and  the  end  is  not  yet.  The 
United  States  were  pretty  much  of  a  world  power  in 
1812;  in  the  sense,  moreover,  in  which  the  gentlemen 
use  the  term.  They  were  a  world  power  in  the  days 
of  President  Monroe,  when  we,  as  a  little  people,  de 
clared  to  the  whole  of  Europe  that  the  extension  of 
monarchy  on  the  western  hemisphere  would  not  be 
tolerated.  We  were  something  of  a  world  power  in 
1861  in  spite  of  the  hatred  of  England,  whose  sudden 
friendship  in  this  day  makes  some  of  us  wonder.  We 
were  something  of  a  world  power  in  1867  when  Na 
poleon  III  was  forced  by  President  Johnson  to  take 
his  troops  from  Mexico  and  leave  the  paper  empire 
of  Maximilian  to  its  fate.  And  we  were  something  of 
a  world  power  during  the  administration  of  President 
Cleveland  when  England  was  frightened  from  Vene 
zuela.  No  loving  kindness  at  that  time  prevented 
us  from  protecting  our  interests  and  traditions  as  it 

180 


POLITICAL  TENDENCIES. 

does  in  these  days  of  our  boasted  prowess  as  a  world 
power. 

But  how  long  will  our  ideas  last  or  the  expression 
of  them  remain  untrammeled?  Trooping  behind  our 
entrance  as  a  world  power  comes  the  hint  that  the 
Philippine  aggression  cannot  be  discussed  without 
committing  an  impropriety.  "If  we  are  sensitive  to 
our  honor  at  home,"  says  Mr.  Roosevelt,  "we  will  not 
discuss  it."  For  it  is  a  question  neither  of  right  nor 
wrong,  nor  of  constitutional  law,  but  it  is  a  question 
of  honor.  It  is  fate,  but  if  it  were  not  fate  it  is  done, 
and  since  done  honor  forbids  its  condemnation.  Thus 
the  constitution  is  made  a  huge  joke;  a  genial  myth 
like  Santa  Glaus  with  which  to  befool  the  people,  while 
everything  is  resolved  into  a  question  of  honor,  and 
whether  our  honor  is  being  besmirched  or  not  de 
pends  upon  those  to  decide  who  assume  to  conserve  it 
and  fix  the  political  fashions  of  the  day. 

Some  other  conditions  have  arisen  as  the  outgrowth 
of  other  developments  which  have  fully  made  their 
appearance  at  this  time.  The  tendency  of  the  period 
is  very  strongly  toward  socialism.  That  it  should 
be  condemned  as  unholy  by  the  very  men  who  have 
produced  it  is  perhaps  as  strange  a  feature  as  the  move 
ment  exhibits. 

For  almost  a  century  it  has  been  the  policy  to  give 
governmental  aid  to  men  no  more  entitled  to  it  than 
anyone  else.  Manufacturers  have  been  awarded  prem 
iums  of  all  sorts  upon  the  theory  that  they  were  pre 
destined  to  have  it  and  inherently  and  of  right  must 
have  it.  For,  it  is  said,  they  cannot  be  profitable  with 
out  it.  "The  tariff,"  according  to  Mr.  Roosevelt  in 

181 


POLITICAL  TENDENCIES. 

his  late  message,  "makes  manufacturers  profitable,  and 
the  tariff  remedy  proposed  (for  the  trusts)  would 
be  in  effect  simply  to  make  manufacturers  unprofit 
able." 

So  this  governmental  favoritism  leads  not  to  a  re 
vival  of  individualism  but  to  socialism,  for  the  reason 
that  long  confusion  of  the  province  of  the  state  has 
obscured  the  line  between  state  duty  and  individual 
right  and  has  made  men  eager  for  immediate  benefits 
as  the  favorites  of  government  have  been  eager 
for  bounties  and  gifts  in  order  to  obtain  present  re 
sults.  And  if  this  dispensation  of  special  privileges 
is  necessary  as  a  foundation  of  our  modern  commer 
cialism  why,  it  is  asked,  is  it  not  the  prior  step  in  the 
order  of  evolution,  or  collective  ownership?  Hereby 
we  eliminate  the  tyrannous  greed  of  the  few  who  use 
our  property  for  our  own  undoing ;  who  not  only  take 
the  bulk  of  what  we  earn,  but  tax  us  for  those  things 
which  we  need,  and  which  we  have  made  it  profitable 
to  produce  by  tariff  laws  bearing  upon  us.  Hence 
it  is  that  all  socialists,  and  especially  the  Marxians, 
watch  with  calm  certainty  the  results.  Their  belief 
that  by  some  blind  fatality  society  is  moving  toward 
socialism  and  that  the  aggression  of  capital  enters  into 
the  certain  force  which  will  bring  the  wished-for  end 
is  in  part  justified. 

The  efforts  of  the  magicians  of  plutocracy  to  keep 
back  the  ground  swell  are  wasted  in  air.  Not  real 
izing  that  their  patrons  have  produced  the  movement, 
they  seem  to  think  that  it  can  be  kept  down  by  shout 
ing  socialism  or  by  talking  against  "criminal  discon 
tent,"  "vile  trade  unions"  and  other  disorders.  One 

182 


POLITICAL  TENDENCIES. 

distinguished  educator  grieves  because  it  seems  to  him 
that  labor  wishes  to  "work  as  few  hours  as  possible 
and  get  as  much  money  as  possible" — just  as  if  it  had 
been  the  creed  of  capitalism  to  give  as  much  as  pos 
sible  and  exact  as  little  as  possible. 

What  a  spectacle  has  been  held  up  to  the  wealth 
producers  of  this  country  for  more  than  a  century! 
They  have  seen  every  form  of  capitalism  lobbying  at 
the  national  and  state  capitals  for  laws  enabling  them 
to  get  something  for  nothing.  They  have  seen  the 
laws  made  and  administered  for  their  interests.  They 
have  seen  protected  industries  combine  with  each  oth 
er  to  monopolize  and  extort,  and  railroads  combine 
with  these  to  discriminate  against  and  crush  out  in 
dependent  enterprise.  They  have  seen  some  of  their 
sworn  officials  uphold  this  condition  as  scientific,  the 
result  of  natural  evolution,  and  others  confess  its  in 
iquities,  but  deny  their  power  under  the  constitution 
to  help  it.  Why  should  moral  wonders  be  expected 
of  labor?  Too  great  a  compliment  is  paid  it  in  mar 
veling  that  it  desires  short  hours  and  big  pay.  It 
sees  corruption  and  favoritism  flourish  at  the  top  and 
the  laws  of  supply  and  demand  and  competition  re 
pealed  from  the  industrial  code,  and  in  consequence 
it  can  conceive  no  reason  why  it  should  not  become 
an  actor  in  the  great  melodrama  of  "grab/* 

But  if  socialism  shall  come,  what  then?  Democracy 
has  not  failed  because  it  has  not  been  tried.  Our  ills 
have  followed  from  violations  of  democracy  and  not 
because  of  its  observance.  It  is  trite  enough  to  say, 
but  not  sufficiently  learned,  nevertheless,  that  this  gov 
ernment  was  founded  upon  the  principle  of  equal 


POLITICAL  TENDENCIES. 

rights.  If  that  had  been  observed  it  seems  inconceiv 
able  that  we  should  suffer  from  the  present  evils.  If 
it  could  be  proven  that  the  great  industries  of  the  land 
and  our  great  industrial  system  could  not  have  been 
built  up  except  by  special  privilege  yet  has  the  end 
justified  the  means?  Build  up  a  few,  but  impoverish 
the  many.  The  country  as  a  whole  is  no  richer.  It 
is  an  argument  that  ends  where  it  begins,  except  that 
human  blood  is  consumed  in  its  development.  And 
that  is  the  question.  Are  men  but  coral  insects  that 
build  and  die?  Are  we  on  a  level  with  animals  which 
devour  each  other  for  sustenance?  This  is  where  the 
argument  ends;  only  the  preachers  and  the  teachers 
indulge  in  irrelevant  conclusions  of  some  sort;  or  lat 
terly  they  have  canonized  Darwin  and  driven  self- 
conscious  intelligence  in  the  control  of  human  des 
tiny  from  the  economic  field. 

Lastly  collectivism  is  the  opposite  of  individualism. 
Perhaps  a  partial  trial  of  the  former  might  prove  its 
own  undoing  and  carry  with  it  the  downfall  of  patern 
alism  as  well.  The  pendulum  ought  to  swing  that 
way.  If  it  did  the  cost  would  not  be  too  much  for 
the  benefit  derived. 


184 


MR.  BRYAN'S  CAMPAIGNS. 

The  period  of  American  political  history  between 
1896  and  1900  belongs  distinctively  to  Mr.  Bryan. 
When  a  retrospect  shall  be  taken  of  it  a  long  time 
hence  he  will  stand  out  as  the  largest  figure  of  all  men 
then  living  in  the  United  States.  Indeed,  during  these 
four  years  he  was  the  most  influential  individual  in 
the  country  and  none,  not  excepting  Mr.  McKinley, 
occupied  a  more  conspicuous  place  in  the  public 
prints.  Scribblers  wrote  their  fingers  off  making  note 
of  his  "futility,"  his  "decline,"  his  "rejection;"  and 
found  themselves  astounded  into  silence  at  intervals 
by  his  lofty  utterances  upon  the  darkening  complica 
tions  that  followed  the  campaign  of  1896.  Mr.  Bryan's 
luminous  influence  for  good  steadily  increased  after 
his  first  defeat  and  in  1900,  appreciative  men  of  in 
sight  anticipated  one  of  those  recurrences  of  history, 
by  which  a  great  moral  power  takes  hold  of  the  des 
tinies  of  a  nation.  The  chilling  shock  to  the  ideals  of 
liberty  administered  by  his  second  defeat  can  never 
be  fully  expressed.  Succeeding  generations  must  ma 
ture  and  suffer  before  they  can  gather  from  the  words 
which  embodied  the  people's  hope  of  him,  and  the 
words  which  recorded  his  loss  of  the  election  their 
deep  and  painful  significance.  This,  however,  is  only 
that  concrete  failure  over  which  the  cynics  and  sa 
tirists  of  plutocracy  have  repeated  their  congratula- 

185 


MR.  BRYAN'S  CAMPAIGNS. 

tions.  If  Mr.  Bryan  after  the  campaign  of  1900  had 
compromised  his  principles,  slackened  his  efforts,  or 
manifested  pessimism  or  ill  temper  he  would  have 
passed  into  history  as  another  example  of  a  man  who 
lacked  moral  reserve  for  the  supreme  crisis.  But  he 
did  none  of  these  things.  In  consequence  since  1900 
his  power  has  expanded  and  matured  so  that  he  has 
taken  his  place  as  a  sort  of  patriarch,  after  the  fash 
ion  of  Washington  or  Jefferson.  From  this  pedestal 
nothing  at  all  probable  can  dethrone  him. 
Of  what  value  he  is  and  will  be  to  the  country  and  the 
world  the  intuitive  mind  will  not  fail  to  discern. 

The  democratic  platform  of  1896  was  the  molten 
expression  of  pent  up  wrath  against  evils  conterminous 
with  the  government  itself.  The  tariff  and  taxation, 
bonds  and  money,  the  federal  courts,  the  rights  of  the 
states  are  subjects  which  have  occupied  political 
thought  in  America  since  the  days  of  Washington. 
There  was  nothing  novel  in  this  platform  and  noth 
ing  in  it  to  suggest  revolutionary  designs.  There  was 
nothing  in  it  out  of  harmony  with  previous  platforms 
of  the  democratic  party.  Many  of  its  clauses  accorded 
with  platforms  of  the  republican  party  itself  in 
the  days  of  its  beginning.  The  tempest  of  villifica- 
tion  and  mendacity  which  rose  against  it  can  be  ex 
plained  only  upon  the  ground  that  it  was  rightly  ac 
cepted  as  the  sincere  declaration  of  men  in  sober 
earnest,  who  meant  exactly  what  they  said  and  who 
meant  to  put  their  principles  into  practice  if  given 
power  to  do  so.  Special  privilege  was  confronted  by 
a  powerful  and  resolute  foe,  and  the  best  weapons  of 
special  privilege,  as  it  turned  out,  were  those  things 

186 


MR.  BRYAN'S  CAMPAIGNS. 

which  confused  the  public  memory,  prejudiced  the 
public  conscience,  and  subdued  the  moral  energies  of 
the  people.  The  historian  who  shall  depict  in  com 
prehensive  form  that  memorable  campaign  will  not 
fail  to  note  the  ardor  with  which  the  republican  par 
ty  clasped  Mr.  Cleveland  to  its  breast  because  the  re 
generated  democratic  party  had  cast  him  out,  although 
no  one  had  been  more  cordially  despised  by  the  repub 
lican  party  or  more  bitterly  assailed  by  its  press  up 
to  that  time.  Nor  can  that  historian  overlook  the  or 
ganized  hypocrisy  of  the  banks,  the  insurance  com 
panies  and  the  monopolies  of  the  country  who  present 
ed  the  spectacle  of  the  streets  of  the  great  cities  of 
the  country  gaudily  rilled  with  the  American  flag  while 
the  air  resounded  everywhere  with  the  multitudinous 
strains  of  patriotic  music  for  which  the  monopolists 
paid  the  bill.  Nothing  so  brazen  and  upon  such  a  gi 
gantic  scale  had  ever  before  been  known  in  this  coun 
try.  It  was  intended  to  be  a  sort  of  psychical  hur 
ricane,  by  which  the  people  should  be  swept  off  their 
feet  in  spite  of  themselves.  It  very  largely  helped  to 
accomplish  the  result  that  ensued.  What  was  worst 
the  very  money  which  went  to  the  undoing  of  the 
people  had  been  taken  from  them  by  the  wretched 
swindling  cf  these  corporations  practiced  for  at  least 
a  third  of  a  century. 

The  barest  reference  to  history  will  show  that  the 
democratic  platform  of  1896  proceeded  along  familiar 
and  creditable  lines.  Upon  the  tariff  question  Mr. 
Cleveland  had  been  elected  president  in  1884  and 
1892.  Free  trade  or  tariff  for  revenue  only  had  been 
an  article  of  the  democratic  faith  since  the  time  of 

187 


MR.  BRYAN'S  CAMPAIGNS. 

Jefferson  himself.  It  was  not  the  tariff  plank  in  the 
platform  which  could  have  honestly  excited  horror 
for  the  "monstrous  birth"  of  the  Chicago  Convention. 
As  to  the  income  tax  our  own  polity  was  familiar 
with  such  a  method  of  raising  revenue.  This,  there 
fore,  was  not  strange  and  forbidding.  It  was  not  es 
sentially  populistic.  The  Chicago  platform  denounced 
banks  of  issue.  But  Jackson  was  elected  president 
twice  because  of  his  opposition  to  a  bank  of  issue.  In 
this  particular  then,  the  platform,  fulfilled  the  require 
ments  of  the  critics  who  were  clamoring  for  "his 
toric  democracy."  There  was  nothing  either  novel  or 
improper  in  the  clause  of  the  platform  which  referred 
to  the  Supreme  Court  and  its  decision  in  the  income 
tax  case.  The  republican  platform  of  1860  contained 
serious  strictures  upon  the  democratic  party  for  us 
ing  the  federal  courts  to  enforce  "the  extreme  pre 
tensions  of  a  purely  local  interest."  It  denounced 
"perversions  of  judicial  power."  The  platform  de 
nounced  the  sending  of  troops  into  Illinois  during  the 
railroad  strike  of  1894  m  language  which  was  a  dilute 
of  similar  language  in  the  republican  platform  of  1860, 
which  referred  to  the  "lawless  invasion,  by  armed 
force,  of  the  soil  of  any  state  or  territory  as  among 
the  worst  of  crimes."  What  was  here  therefore  to 
shock  the  sensibilities  of  Mr.  McKinley  and  his  party, 
many  of  whom  had  supported  the  republican  platform 
of  1860?  And  finally  as  the  republican  platform  of 
1892  had  declared  for  bimetallism,  and  as  Mr.  McKin 
ley  had  vigorously  criticised  Mr.  Cleveland  for  "dis 
honoring  one  of  the  precious  metals;"  as  the  demo 
cratic  platform  of  1892  had  declared  that  "we  hold  to 

1 88 


MR.  BRYAN'S  CAMPAIGNS. 

the  use  of  both  gold  and  silver  as  the  standard  money 
of  the  country  and  to  the  coinage  of  both  gold  and 
silver,  without  discriminating  against  either  metal" 
there  was  nothing  in  the  money  plank  of  the  platform 
of  1896  to  alienate  any  voter  unless  it  inspired  the 
fear  that  what  both  parties  had  up  to  that  time  osten 
sibly  favored  was  on  the  point  of  coming  to  pass. 

Somehow  in  the  logic  of  the  world's  affairs,  result 
ing  perhaps  from  the  power  of  special  privilege  and 
its  methods  of  dissimulation,  every  trespass  upon  the 
rights  of  man,  every  reaction  toward  a  discarded  in 
justice  can  for  the  time  being  be  set  out  to  masquerade 
as  law  or  progress.  The  protective  tariff,  the  national 
banks,  the  single  gold  standard,  the  great  monopolies, 
the  return  to  militarism  and  the  disregard  of  the  line 
which  divides  state  from  national  sovereignty  have 
come  to  pass  through  stealth,  mendacity  and  force. 
It  is  marvelous,  indeed,  that  any  considerable  number 
of  men  could  be  made  to  believe  that  the  readoptiori 
of  the  constitution  in  its  essential  form  and  vigor  and 
the  overthrow  of  these  evils  was  dangerous  radical 
ism  or  smacked  of  revolution.  If  a  body  of  men,  like 
those  under  John  Brown,  forcibly  assail  the  "con 
stituted  authorities"  the  offense  can  be  easily  desig 
nated.  If  riots  occur,  if  disorder  prevails  as  the  re 
sult  of  economic  conditions,  as  a  protest  against  the 
system,  which  unjustly  distributes  to  the  few  wealth 
beyond  their  power  to  use,  and  to  the  many  less  of 
the  means  of  life  than  they  earn  or  need,  it  is  still 
riot  and  disorder  and  subject  to  the  courts  or  the  mili 
tary.  Yet  a  few  men  who  have  been  able,  through 
one  fortune  or  another,  to  name  the  occupants  of  the 

189 


MR.  BRYAN'S  CAMPAIGNS. 

several  departments  of  the  government,  may  do  in 
finitely  worse  things  than  these  and  stifle  all  criti 
cism  through  the  press  and  the  pulpit.  This  they  did 
in  1896  to  an  extent  never  before  known  except  dur 
ing  the  time  of  the  war  between  the  states.  When 
special  privilege  controls  the  congress,  the  president 
and  the  supreme  court  no  obstacle  exists  to  the  pas 
sage  of  any  desirable  law  and  to  the  validation  of  the 
law,  because  it  is  desirable.  But  it  will  require  some 
thing  more  than  the  out-worn  jargon  of  insolent  pow 
er  to  persuade  reasonable  men  to  believe  that  that 
law  is  sacred,  or  that  an  act  done  in  its  name  is  essen 
tially  different  from  an  act  done  without  a  law,  but 
which  is  equally  violative  of  the  deeper  ethical  law. 
So  it  was  in  1896  that  men  who  had  taken  an  oath  to 
support  the  constitution,  but  who  had  maliciously  done 
everything  in  their  power  to  undermine  the  republican 
system,  took  upon  themselves  the  protection  of  na 
tional  honor.  The  platform  of  1896  was  denominated 
revolutionary  by  those  who  had  themselves  revolu 
tionized  the  government  of  the  United  States.  To 
re-establish  justice  and  to  re-secure  the  blessings  of 
liberty  were  revolutionary  ends  in  the  eyes  of  a  party 
which  has  established  injustice  and  made  the  blessings 
of  liberty  difficult  to  ourselves  and  doubtful  to  our  pos 
terity.  Hence  it  was  that  Mr.  Bryan  was  assailed  in 
the  open  and  from  ambush  by  every  weapon  of  stu 
pidity,  hypocrisy  or  studied  hatred.  There  was  no 
catch  word  stimulative  of  the  barbaric  prejudices  of 
the  mind,  which  were  not  raised  against  him.  He  not 
only  came  through  it  all  unscathed,  but  with  a  fore- 

190 


MR.  BRYAN'S  CAMPAIGNS. 

sight  and  wisdom  seldom  equalled,  avoided  the  snares 
that  plutocracy  everywhere  spread  for  his  feet. 

No  man  of  America,  whose  capacities  we  have  had 
a  chance  to  estimate,  could  have  sustained  the  cam 
paign  of  1896  with  the  ability  which  Mr.  Bryan 
brought  to  that  trying  and  laborious  task.  Neither 
Jefferson  nor  Jackson  were  public  speakers  of  conse 
quence.  Both  Clay  and  Webster  were  impeachable 
in  their  private  lives ;  both  in  fact  exhibited  vagueness 
and  vacillation  of  mind  on  the  important  subjects  of 
their  day.  Calhoun  entered  public  life  at  an  early  age 
and  had  the  misfortune  to  record  himself  on  opposite 
sides  of  the  same  questions.  The  career  of  Douglas 
furnishes  its  own  judgment  upon  his  capacity  for  the 
ordeal  of  1896.  Lincoln  was  supported  by  centralism. 
He  found  a  revolution  made  to  his  hands.  The  foes 
which  he  met  were  a  divided  democracy,  and  a  spe 
cial  interest  weakened  by  internal  strife.  Since  Lin 
coln's  day  and  up  to  the  election  of  Mr.  McKinley  in 
1896,  we  have  produced  no  man  of  adaptable  ability, 
who  also  possessed  first  rate  character.  Greeley  was 
not  harmoniously  consistent.  Tilden  was  vulnerable; 
so  were  Garfield,  Arthur,  Conkling  and  Blaine.  Har 
rison  lacked  versatility  and  magnetism.  To  consider 
Mr.  McKinley  in  this  connection  as  having  sustained 
the  opposite  side  of  the  same  campaign  the  compari 
son  is  contemptible.  The  corrupt  treasure  of  every 
special  privilege  in  the  land  was  laid  at  his  feet.  The 
railroads  delivered  crowds  at  his  porch;  and  instead 
of  making  speeches  in  the  midst  of  arduous  travels  and 
after  broken  rest,  he  husbanded  his  strength  at  home 
and  spoke  amidst  familiar  surroundings  and  at  inter- 

191 


MR.  BRYAN'S  CAMPAIGNS. 

vals  of  repose.  Could  Mr.  Bryan  have  traveled  the 
length  of  the  land  presenting  the  cause  of  bimetallism 
if  the  opposition  could  have  brought  against  him  any 
recorded  utterance  of  his  in  favor  of  the  single  gold 
standard?  Could  he  have  faced  the  hostile  sentiment 
of  desperate  plutocracy  if  the  "silver  mine  owners" 
had  paid  his  debts  and  rescued  him  from  bankruptcy? 
Yet  Mr.  McKinley  within  less  than  four  years  of 
1896  had  been  an  ardent  bi-metallist.  Within  the  same 
length  of  time  a  rather  sinister  influence  had  given 
him  financial  assistance  of  considerable  magnitude. 

If  Mr.  Bryan  bringing  into  the  political  world  a 
light  which  the  world  knew  not,  had  been  successfully 
held  up  as  a  doubtful  character  his  rejection  would 
have  been  irrevocable  and  tragic.  But  instead,  he 
loosened  a  current  of  morality  which  has  flowed  to 
the  refreshment  of  a  nation;  and  is  one  of  the  cura 
tives  of  that  awful  canker  of  the  soul,  whose  symp 
toms  have  been  more  pronounced  ever  since  the  ad 
vent  of  that  hypocrisy  which  supported  Mr.  McKinley. 
Political  idealism  never  had  so  thorough,  so  unimpeach 
able  a  presentation  as  it  did  in  the  hands  of  Mr.  Bryan 
during  the  campaign  of  1896.  After  his  convention 
speech  it  was  apparent  that  plutocracy  was  baffled 
and  bewildered.  It  burst  forth  into  incoherent  rail 
ings.  It  then  began  to  conjure  with  those  images 
which  frighten  the  timorous,  confuse  the  simple,  and 
inspire  reflection  in  the  soul  of  greed.  Mr.  Bryan  was 
held  up  as  a  man  who  had  failed  as  a  lawyer,  although 
no  one  had  ever  pretended  that  Mr.  McKinley  had 
succeeded  as  a  lawyer.  He  was  criticised  as  a  man 
who  had  made  a  living  out  of  politics,  although  he 

192 


MR.  BRYAN'S  CAMPAIGNS. 

had  made  a  living  both  as  a  lawyer  and  as  a  newspa 
per  writer,  while  Mr.  McKinley  had  held  office  al 
most  without  interruption  from  the  time  of  his  ma 
jority.  At  loss  at  times  for  something  to  say  his 
critics  found  fault  with  his  dress,  with  the  cut  of  his 
coat  and  the  style  of  his  collar.  Ugly  slanders  were 
set  afloat  in  the  under-world  of  gossip  in  spite  of  his 
almost  immaculate  personal  appearance.  The  pluto 
cratic  press  scolded  and  laughed  by  turns.  Orators 
big  and  little  assailed  his  political  economy  in  lan 
guage  that  frequently  showed  the  grossest  ignorance 
of  its  simplest  principles.  He  was  accused  of  lacking 
humor  in  the  face  of  the  fact  that  Mr.  McKinley's 
habitual  stock  in  trade  was  a  solemn  pose.  Yet  for 
all  that,  Mr.  Bryan's  sallies  at  Mr.  Hanna  and  his 
amiable  flashes  kept  the  country  smiling.  The  silli 
ness  and  the  inconsistencies  which  were  offered  to  the 
public  as  criticisms  of  Mr.  Bryan  showed  that  the  press 
sometimes  successfully  maintains  a  poor  regard  for  the 
public's  sense  of  the  absurd. 

Once  over  the  thrilling  scare  which  plutocracy  had 
received,  and  Mr.  McKinley  having  been  made  presi 
dent  by  the  most  immoral  means  outside  of  a  military 
usurpation,  there  was  observable  to  political  thinkers 
the  laying  of  plans  by  which  no  such  other  menace 
to  special  privilege  could  be  nearly  so  possible.  For 
the  money  question  was  only  the  strategic  point 
around  which  the  popular  forces  swarmed  in  their  at 
tack  upon  special  privilege  of  every  sort.  Nearly 
four  years  after  the  campaign  Congress  passed  a  nom 
inal  gold  bill ;  but  our  fiscal  system  was  not  put  upon 
the  single  gold  basis  by  that  law.  Before  that  the 

193 


MR.  BRYAN'S  CAMPAIGNS. 

coinage  of  silver  dollars  had  been  resumed  at  the  ra 
tio  of  16  to  i,  thus  showing  that  the  republican  party 
was  afraid  to  imperil  its  lease  of  power  by  limiting 
the  country  to  the  single  standard.  It  therefore  ac 
cepted  as  correct  the  quantitative  theory  of  money. 
The  banks  came  in  for  favorable  legislation  in  the  is 
sue  of  notes,  and  a  motley  combination  of  provisions 
were  furnished  to  those  chiefly  interested,  designed 
to  deceive  the  people,  to  satisfy  the  rapacious,  and  to 
leave  intact  that  prosperity  which  was  beginning  to 
spring  from  the  energies  and  favorable  situation  of 
the  people. 

But  nevertheless,  the  centralized  grip  of  monopoly 
was  tightened.  It  was  at  once  perceived  that  plutoc 
racy  had  taken  the  reins  of  power,  and  by  cau 
tious  and  astute  degrees  was  beginning  to  more  thor 
oughly  intrench  itself  behind  the  ramparts  of  the  fed 
eral  government.  Powers  which  had  not  been  exer 
cised  by  the  general  government  for  years  were 
pressed  into  service,  among  which  was  the  bankrupt 
act.  Administrative  policies  indicated  the  scheme  in 
mind. 

Mr.  Bryan,  undaunted  by  this  defeat,  continued  his 
work  of  education  and  encouragement.  There  would 
have  been,  in  fact,  a  second  battle  with  the  money 
question  as  the  entering  wedge  except  for  the  war 
with  Spain.  No  political  party  was  ever  held  togeth 
er  by  purer  enthusiasm  or  clearer  faith  than  the  demo 
cratic  party  after  the  election  of  1896.  But  an  un 
foreseen  fluke  in  the  affairs  of  the  country  set  Mr. 
Bryan's  plans  utterly  adrift  and  gave  plutocracy  an 
undreamed  of  supremacy  over  the  people  of  America. 

194 


MR.  BRYAN'S  CAMPAIGNS. 

Mr.  McKinley  at  first  tried  to  keep  the  country  out 
of  the  war.  For  a  moment  plutocracy  suffered  an 
occupation.  It  could  see  only  its  bonds.  Then  with 
swift  realization  it  comprehended  greater  treasures 
than  the  bonds,  and  greater  powers  than  it  had  ever 
known  in  this  country.  The  democrats  in  Congress, 
with  an  insanity  rarely  seen,  howled  themselves 
hoarse  for  war  and  helped  plutocracy  to  forge  the  first 
link  of  militarism  and  imperialism.  They  were  ut 
terly  lost  to  the  thought  that  the  republican  party  never 
had  anything  to  offer  the  people  and  must  either  win 
with  a  war  or  upon  the  memory  of  a  war.  And  so 
without  any  reason  whatever  the  forces  of  hate  and 
force  were  turned  loose.  The  viler  elements  of  life 
were  given  the  supremacy,  and  those  who  thirst  for 
power  and  advantage  at  any  cost  broke  through  the 
bonds  of  peace  upon  missions  of  "glory."  It  was  a 
hypocritical  war  and  its  fruits  have  been  venomous 
to  the  death. 

There  never  was  the  slightest  occasion  for  debauch 
ing  our  ideals  or  destroying  our  institutions.  But 
long  ago  the  spirit  of  encroachment  took  courage. 
At  first  we  had  the  protective  tariff  and  the  bank. 
Then  the  supreme  court  began  to  usurp  powers  not 
given  it.  Then  came  the  civil  war,  which  unsettled 
the  ideals  of  liberty.  Following  upon  this  were  some 
amazing  trespasses  upon  the  organic  law.  And  all 
the,  time  special  privilege  was  flourishing  in  an  in 
verse  ratio  to  the  destruction  of  freedom,  and  was 
forming  over  against  itself  a  host  of  organized  dis 
content.  It  was  this  host  which  made  a  supreme  rally 
in  1896,  perhaps  the  last  to  be  seen  in  the  country 

195 


MR.  BRYAN'S  CAMPAIGNS. 

for  a  long  time  along  old  and  familiar  lines.  And  it 
was  this  host  which  plutocracy  determined,  after  the 
election  of  1896,  to  put  under  foot.  The  war  with 
Spain  furnished  the  means.  It  gave  an  excuse,  wicked 
and  hypocritical  to  be  sure,  but  still  an  excuse,  to 
begin  the  organization  of  a  standing  army  to  be  used 
ostensibly  to  hold  and  protect  our  ill-gotten  posses 
sions,  but  in  fact  and  chiefly  to  cow  the  labor  of  the 
land. 

If  there  was  to  be  a  great  army  there  had  to  be  a 
great  navy.  Of  the  same  brood  came  censorship  of 
the  press,  and  in  the  Philippines  the  denial  of  freedom 
of  speech  and  of  trial  by  jury,  those  estimable  rights 
hardly  ever  questioned  since  the  time  of  William  and 
Mary,  and  which  we  could  not  reserve  without  the 
basest  treason  to  principles  of  liberty  which  we  had 
proclaimed  in  a  manner  none  too  amiable  for  more 
than  a  hundred  years.  Government  by  injunction 
was  greatly  strengthened  by  the  change.  The  suspen 
sion  of  the  writ  of  habeas  corpus  by  a  state  governor 
in  order  more  effectually  to  subjugate  labor  is  now 
a  matter  of  little  moment.  Conspiracy  prosecutions 
have  become  the  order  of  the  day.  Men  are  in  fact 
today  in  America  punished  for  their  thoughts  and  their 
convictions;  and  plutocracy  brings  to  the  light  the 
skeletons  of  those  who  perished  in  times  past  under 
prosecutions  which  are  resurrected  as  authoritative 
methods  adequate  to  present  conditions  of  "disorder," 
"discontent,"  and  even  "sedition,"  a  word  much  used 
of  late.  The  unfortunate  assassination  of  Mr.  McKin- 
ley  was  turned  by  plutocracy  to  the  greatest  account. 
With  this  as  a  pretext  the  old  alien  and  sedition  laws 

196 


MR.  BRYAN'S  CAMPAIGNS. 

have  been  revamped  only  to  give  them  more  abhor 
rent  form.  These  placed  in  the  hands  of  an  executive 
secretary  enable  him  to  arrest  any  person  coming  into 
the  country,  and  to  deport  the  subject  without  a  trial, 
without  witnesses,  without  a  judicial  inquiry,  and  with 
out  even  a  formal  accusation.  The  potentialities  of 
this  new  law  are  not  known.  It  may  be  used  against 
citizens.  The  twin  dragons  of  imperialism  and  mili 
tarism  hatched  out  by  special  privilege  have  inspired 
in  the  breasts  of  thoughtful  Americans  fears  of  more 
tragic  days  than  any  we  have  yet  known  before  they 
can  be  slain. 

Time  must  pass  before  any  one  can  fully  judge  of 
Mr.  Bryan's  course  in  urging  the  ratification  of  the 
treaty  of  Paris.  It  could  not  be  doubted  at  any  time 
that  it  meant  imperialism.  At  least,  the  treaty  was  so 
suggestive  of  imperialism  that  the  chance  should  not 
have  been  taken.  Mr.  Bryan,  nevertheless,  for  his  own 
sake  and  for  the  sake  of  his  party,  took  prudent  grounds 
in  relation  to  it.  He,  in  fact,  was  endeavoring  to  dodge 
the  shadow  of  the  civil  war.  But  it  was  an  awful 
blunder.  One  step  before  him  was  clear,  and  that  was 
to  oppose  the  treaty  because  it  was  repugnant  to  the 
spirit  of  our  peculiar  institutions.  The  next  step 
neither  he  nor  any  one  else  could  see.  But  when  the 
first  step  is  clear  in  such  things  the  rest  must  be  trusted 
to  that  logic  of  righteousness  which  is  the  hope  of 
progress.  He  justified  his  course  in  one  of  Lincoln's 
epigrams-  but  the  times  were  inopportune  to  quote 
Lincoln,  and  the  epigram  itself  was  fallacious. 

So  it  was,  however,  that  Mr.  Bryan  went  into  the 
campaign  of  1900  without  that  odium  which  would 

197 


MR.  BRYAN'S  CAMPAIGNS. 

have  attached  to  him  if  he  had  opposed  the  treaty  and 
it  had  been  ratified  in  spite  of  him.  While  dealing  with 
the  foe  he  had  been  with  his  own  country.  After  the 
negotiations  with  the  foe  were  at  an  end  he  sought  to 
impress  principles  of  justice  and  liberty,  as  well  as  his- 
.toric  constitutional  law,  upon  the  policy  toward  the 
islands.  There  was  some  political  wisdom  in  this 
course,  and  much  in  it  to  ward  off  the  attack  of  the 
war  party.  But  it  was  of  no  real  avail.  The  country 
had  gone  too  far.  Too  much  had  happened  to  deaden 
the  feelings  of  the  people.  The  democratic  convention 
of  1900  was  inspiring  to  the  highest  degree,  and  Mr. 
Bryan's  speech  of  acceptance  placed  him  on  a  higher 
plane  as  an  orator  than  anything  he  had  ever  done. 
But  after  their  echoes  had  died  away  the  political  at 
mosphere  tingled  with  a  suspicious  silence.  One  hun 
dred  years  after  Thomas  Jefferson  routed  the  hosts  of 
centralism  and  special  privilege,  imperialism  in  full 
armor  stepped  into  power  in  America,  easily  brushing 
aside  a  man  who,  in  some  particulars,  is  equal  to  Jef 
ferson  himself. 

Of  a  piece  with  the  whole  course  of  insincerity  to 
ward  Mr.  Bryan  in  the  campaign  of  1900  were  the  apol 
ogies  offered  by  those  who  felt  conscience  stricken  for 
not  supporting  him.  The  platform  upon  which  he 
made  the  canvass  was  open  to  no  criticism  by  those 
who  deplored  the  Spanish  war  and  its  wicked  perver 
sions.  But  Mr.  Bryan,  in  spite  of  the  flattering  prophe 
cies  of  success  dinned  into  his  ears  if  he  would  abandon 
the  money  question,  and  in  spite  of  appeals  from  his 
friends  and  well-wishers,  as  well  as  those  who  were 
neither,  to  abandon  it,  made  the  re-affirmation  of  the 

198 


MR.  BRYAN'S  CAMPAIGNS. 

money  plank  in  the  platform  of  1896  a  condition  of  his 
acceptance  of  the  nomination  in  1900.  Be  this  ever 
said  to  his  credit.  Of  the  many  noble  things  which 
he  did  in  the  four  years  between  1896  and  1900,  no 
other  act  of  his  so  much  stamped  him  with  greatness 
and  gave  him  power  over  the  people.  If  he  had  re 
nounced  the  money  plank  it  is  true  that  he  would 
•have  fallen  into  the  hands  of  those  who  wanted  to 
make  him  out  a  mere  figurante  of  the  day  with  an 
'overweening  ambition  for  place.  But  still  those  ene 
mies,  if  disposed  to  be  consistent,  should  have  ad 
mitted  that  the  plank  made  no  difference,  because  the 
gold  standard  had  become  the  settled  law,  and  Mr. 
Bryan  could  not  have  changed  it  during  his  term  if 
elected,  owing  to  the  complexion  of  the  Senate.  This 
was  the  unctuous  self-gratulation  of  the  organs  of  the 
republican  party  until  Mr.  Bryan  compelled  the  re-af 
firmation  of  the  platform  of  1896.  Now  suddenly  a 
great  outcry  was  made  that  the  gold  standard  would 
be  threatened  by  his  election,  and  that  body  of  men 
who  knew  that  Mr.  McKinley's  election  meant  imper 
ialism,  and  who  had  opposed  the  imperial  policy  of  his 
administration,  faced  about  pretendedly  because  the 
money  question  was  more  important  than  the  question 
of  imperialism — the  money  question  of  whose  settle 
ment  beyond  Mr.  Bryan's  power,  if  elected,  to  dis 
turb,  they  had  rejoiced  and  boasted! 

This  is  a  cursory  outline  of  the  record  which  the 
republican  party  made  between  1896  and  1900,  and  of 
the  record  which  Mr.  Bryan  and  his  party  made.  No 
human  power  can  add  to  or  take  away  from  either 
record.  In  time  to  come  both  records  will  be  known 

199 


MR.  BRYAN'S  CAMPAIGNS. 

and  compared,  and  every  writing  and  fact  necessary 
to  their  clear  understanding  will  be  brought  to  light. 
There  will  be  no  doubt  at  the  seat  of  judgment  which 
controls  the  verdicts  of  history  in  what  manner  those 
records  shall  be  judged.  For  the  open  and  secret 
deeds  of  those  will  be  known  who  "blew  out  the  moral 
lights  around  us,"  and  left  a  great  nation  fashioned 
after  the  purest  and  most  philosophic  principles  of 
idealism  to  flounder  in  darkness  and  mire. 


20C 


OBSERVATIONS  ON  DEMOCRACY. 

After  a  century  of  insidious  slander  of  democracy  the 
American  people  as  a  mass  are  beginning  to  show  a 
confused  conception  of  the  ideals  of  free  institutions. 
To  say  that  the  people  are  too  zealous  of  their  own 
welfare  to  relinquish  any  substantial  right  is  to  utter 
a  fine  phrase  and  ignore  the  facts.  They  have  already 
parted  with  substantial  rights;  they  continue  to  part 
with  them  and  new  propositions  to  surrender  others 
are  met  by  united  acquiescence  and  divided  protest. 
The  policy  of  giving  state  aid  to  the  mercantilists  and 
taxing  all  others  to  do  it ;  of  fondling  the  producer  and 
smiting  the  consumer;  of  considering  capital  as  some 
thing  to  be  worshiped  and  labor  as  something  quite 
common,  quite  as  a  matter  of  fact  and  quite  subsidiary 
to  capital,  has  brought  its  logical  result  at  last.  In  spite 
of  philosophy,  in  spite  of  its  interpreters  in  the  persons 
of  our  most  distinguished  statesmen;  in  spite  of  the 
examples  and  teachings  of  the  fathers  and  the  warnings 
of  their  faithful  successors,  and  in  spite  of  sad  exper 
iences  of  other  people  at  other  times ;  in  spite  of  all  that 
should  have  curbed  the  spirit  so  reactionary  to  the  pol 
icy  of  a  republic,  the  American  people  today  find  them 
selves  bewildered  over  principles  which  no  one  assailed 
a  generation  ago. 

For  along  with  this  repression  and  favoritism  there 
has  accumulated  in  the  hands  of  a  few  great  wealth 

201 


OBSERVATIONS   ON   DEMOCRACY. 

and  great  power.  These  influences  instruct  the  young ; 
they  mould  history  and  write  it  after  it  is  moulded; 
they  exalt  and  dethrone  at  will ;  they  crown  mediocrity 
and  strike  down  merit;  they  have  monopolized  the 
means  of  intelligence;  the  girdles  and  the  highways 
which  circle  the  globe  are  theirs;  the  widow's  oil  and 
the  farmer's  salt  are  theirs;  they  have  stolen  all  the 
weapons  of  caricature,  satire  and  argument.  And 
they  have  rapidly  created  a  public  sentiment  which 
favors  everything  except  the  peccadilloes.  The  school 
histories,  the  accessible  biographies  are  written  with  a 
view  of  prejudicing  the  young  against  popular  insti 
tutions.  Jefferson,  Madison  and  Jackson  are  belittled 
in  order  to  make  room  for  the  magnification  of  Hamil 
ton  and  Marshall.  With  no  patron  saints  but  an  astute 
bookkeeper  and  a  complaisant  judge  they  have  en 
throned  themselves  and  demand  attention.  They  fill 
the  air  with  chattering  panegyric  over  men  who  hated 
republican  principles. 

The  important  work  of  Jefferson,  the  most  important 
ever  performed  by  any  statesman,  which  belongs  not 
merely  to  the  lower  world  of  statecraft  but  has  pierced 
into  the  rarer  realm  of  philosophy,  has  been  assaulted 
at  its  base  for  years,  indoctrinating  successive  genera 
tions  with  a  spirit  of  hatred  for  the  memory  of  him 
whom  the  Olympus  of  judgment  has  placed  above  al] 
Americans.  And  what  is  Jefferson  charged  with? 
Listen:  Jefferson  was  not  a  warrior;  he  was  a  cow 
ard;  he  wrote  anonymous  letters;  he  did  not  walk 
straight ;  he  did  not  look  one  in  the  eye.  On  the  other 
hand  Hamilton  was  a  soldier;  he  was  brave;  he 
acknowledged  his  productions ;  he  held  his  head  erect ; 

202 


OBSERVATIONS  ON  DEMOCRACY. 

his  piercing  glance  abashed  the  most  self-possessed. 
But  it  is  not  considered  that  he  devised  an  anonymous 
system  of  indirect  taxation,  by  which  the  earnings  of 
one  man  can  be  transferred  to  the  pockets  of  another 
man,  pursuant  to  which  the  evils  of  today  have  largely 
come  to  pass.  If  Jefferson  wrote  the  "Anas,"  Hamil 
ton  fathered  the  protective  tariff  which  nearly  everyone 
has  discovered  is  a  deception ;  if  Jefferson  did  not  walk 
erect,  if  he  did  not  look  his  hearer  in  the  eye,  Hamilton 
planned  to  revolutionize  the  republic  and  to  do  it  by 
subterfuge  and  chicane. 

In  this  unequal  struggle,  unequal  for  fifty  years  at 
least,  the  ideals  of  democracy  have  ceased  to  present 
themselves  clearly  to  the  eyes  of  the  American  people. 
In  the  lust  for  wealth  and  power  officials  have  forgot 
ten  that  they  are  not  in  office  for  themselves,  but  for 
the  people.  General  corruption  has  undermined  faith 
in  the  administration  of  the  law.  This  condition  of 
feeling  is  very  responsive  to  arguments  of  absolutism. 
How  close  we  are  to  that  now  time  alone  can  deter 
mine.  But  that  there  is  a  silent  sentiment  for  it, 
especially  in  those  portions  of  the  country  which 
fought  democracy  with  the  Hartford  convention  and 
by  good  luck  expunged  their  infamy  through  this  tra- 
duction  already  discussed,  there  can  be  no  doubt. 

What,  then,  of  democracy  do  we  hold  fast  to?  Is 
it  man's  equality?  But  that  is  attacked,  not  by  deny 
ing  what  it  means,  that  all  men  have  equal  rights  be- 
before  the  law,  but  by  saying  that  all  men  are  not 
equal,  because  men  differ  in  mental  power  and  char 
acter,  which  it  does  not  mean.  Then  it  follows  that 
every  proposition  of  democracy  must  be  again  de- 

203 


OBSERVATIONS  ON  DEMOCRACY. 

fended.  All  is  upset  which  we  thought  secure.  All 
is  confusion  where  once  was  order.  All  that  was  done 
must  be  done  again.  A  spirit  of  rude  iconoclasm 
has  swept  over  from  the  middle  ages,  and  masquer 
ading  as  progress  goes  about  to  tear  down  what  was 
built  so  firmly  centuries  ago. 

Do  governments  derive  their  just  powers  from  the 
consent  of  the  governed?  That  was  once  the  general 
tenet  in  this  country.  But  now  it  is  disputed.  It  is 
now  held  that  there  is  a  metaphysical  substance  called 
sovereignty  not  derived  from  the  people,  but  which 
proceeds  from  the  same  source  that  originates  the 
sovereignty  of  despotism,  and  is  the  same  thing  in 
degree  and  kind.  It  is  the  child  of  destiny  and  the 
voice  of  God.  It  is  the  recrudesence  of  Philip's 
power  and  it  may  send  its  duke  of  Alva  anywhere  in 
the  world  to  subdue  heresy  and  cow  rebellion. 

Is  liberty  an  inalienable  right?  Yes,  but — !  It  may 
be  so,  but — !  Liberty,  why  of  course,  but — !  Liberty 
must  be  carefully  circumscribed  or  it  will  spread  into 
license. 

Is  the  pursuit  of  happiness  an  inalienable  right? 
This  is  impugned  by  all  our  modern  legislation.  The 
government  has  surrendered  to  a  marauding  band  of 
giant  monopolies  the  sovereign  power  of  taxation. 
For  the  power  to  destroy  competition,  and  in  its  turn 
to  fix  prices  at  will,  is  an  exercise  of  the  taxing 
power,  while  every  dollar  taken  from  a  man  decreases 
his  liberty  to  pursue  his  own  way  in  life  and  weakens 
his  capacity  as  a  citizen.  For  along  with  such  per 
version  of  justice  there  is  born  the  spirit  of  anarchy  on 
one  side  and  of  socialism  on  the  other ;  anarchy,  which 

204 


OBSERVATIONS  ON  DEMOCRACY. 

would  uproot  all  government,  and  socialism,  which 
would  make  government  of  everything.  And  as  dis 
content  is  heard  in  the  land  the  only  remedy  suggested 
is  the  club,  not  to  destroy  the  injustice,  but  to  beat 
down  discontent  with  the  injustice.  Thus  we  have 
government  by  injunction  and  expediency  in  legisla 
tion. 

But  democracy  itself  has  been  at  fault.  As  a  mat 
ter  of  fact,  there  is  no  such  thing  as  traditional  de 
mocracy;  it  has  no  historic  character  to  which  the 
democratic  party  of  today  can  turn  for  guidance.  The 
democratic  party  has  been  for  free  trade  and  then  for 
protection.  It  was  on  both  sides  of  the  bank  question ; 
it  opposed  and  championed  internal  improvements. 
It  was  for  hard  money  and  it  worshiped  at  the  shrine 
of  the  greenback.  And  while  its  several  opposing 
parties  were  equally  vacillating  it  was  natural  that 
they  should  be  so.  They  were  seeking  at  all  times  to 
draw  the  government  into  the  hands  of  a  few  men, 
which  was  a  difficult  process;  while  to  keep  the  gov 
ernment  in  the  hands  of  the  people  as  a  means  to  dem 
ocratic  ends  was  generally  a  popular  creed.  It  found 
general  acceptance  and  it  should  have  been  the  object 
ive  point  at  all  times. 

The  principles  of  democracy,  therefore,  cannot  al 
ways  be  found  in  its  platforms.  All  of  its  tenets  can 
be  deduced  from  the  great  outlines  of  the  declaration 
of  independence.  They  were  written  there  out  of  the 
fullness  of  the  human  heart ;  their  inspiration  was  the 
necessary  logic  of  human  life.  What  each  desires  are 
life  and  liberty  and  the  privilege  to  seek  his  own;  to 
have  that  which  he  earns  and  to  surrender  none  of 

205 


OBSERVATIONS  ON   DEMOCRACY. 

it  to  others  under  the  law  except  what  is  necessary 
to  protect  others  in  the  same  enjoyment.  It  is  in  the 
human  heart  that  democracy  has  erected  her  temple; 
it  is  from  the  human  heart  that  the  voice  of  democracy, 
whether  in  grief  or  joy,  whether  subdued  or  victor 
ious,  ever  speaks  and  will  speak  forever. 

But  to  emphasize  the  rights  of  the  common  people, 
as  if  democracy  was  concerned  alone  with  them,  is  an 
erroneous  and  pernicious  course.  Democracy  concerns 
itself  with  no  class.  It  demands  that  the  poor  man 
shall  have  and  enjoy  his  own;  that  he  shall  worship 
and  speak  and  act  as  he  pleases  up  to  the  limit  of  the 
same  right  as  every  other  man.  Whoever  by  diligence 
has  acquired  wealth  shall  also  enjoy  and  keep  what 
he  has  gained.  Children,  even,  shall  inherit  idleness 
from  him  who  earned  it.  The  end  of  democracy  is 
not  the  rule  of  the  common  people.  The  end  of  de 
mocracy  is  the  development  of  the  individual  in  intel 
lect  and  morals  and  usefulness,  in  a  sense  of  justice, 
in  the  virtues  of  the  heart,  and  to  that  end  democracy 
demands  liberty,  and  to  obtain  liberty  it  reposes  the 
government  in  the  whole  people.  If  there  be  failure, 
which  is  minimized  by  popular  rule,  it  is  by  the  same 
token  guaranteed  a  speedy  and  comprehensive 
amendment.  Democracy  believes  in  wealth  for  all 
who  can  by  industry  and  intelligence  obtain  it.  It 
will  not  permit  trespass  or  confiscation.  Nor  will  it 
by  special  privilege  from  the  state  suffer  a  part  to 
acquire  wealth  at  the  expense  of  the  many.  Such  a 
course  impugns  the  principle  of  man's  equality,  which 
is  the  first  clause  in  its  creed. 

Democracy  demands  freedom  of  conscience.    It  was 

206 


OBSERVATIONS  ON  DEMOCRACY. 

won  by  the  most  painful  struggle  in  the  history  of 
man.  Nor  is  it  in  these  days  of  unsettled  ideals  very 
generally  assailed.  While  Charles  V  reasoned  that 
there  was  but  one  religion  and  one  salvation,  and  that 
to  punish  heresy  was  to  serve  God  and  man,  no  one 
now  fails  to  smile  at  this  quaint  sophistry.  It  passed 
away  long  ago  where  a  great  deal  else  that  still  lingers 
to  hamper  mankind  should  have  gone. 

As  a  principle  of  government  democracy  demands 
the  least  government  consistent  with  public  order 
and  the  general  welfare.  It  limits  its  interference  to 
trespasses.  Whenever  a  hand  is  uplifted  or  a  plot 
concocted  to  assail  equal  rights,  democracy  enters  its 
effectual  protest.  And  in  the  observance  of  this  simple 
rule  is  a  great  reward  to  the  people  as  a  whole.  Un 
der  its  benign  influence  there  are  no  boards  to  inter 
meddle  in  private  affairs;  there  is  no  corrupt  official 
ism;  there  is  little  chance  for  powerful  machines; 
there  is  frugality  in  administration;  there  are  no  use 
less  and  costly  navies;  there  are  no  standing  armies; 
there  is  no  extravagant  flummery ;  there  is  no  grabbing 
of  a  scrubby  island,  and  then  of  other  islands  to  pro 
tect  the  first;  there  are  no  subsidies,  no  protective 
tariffs,  no  system  of  finance  which  favors  a  part  of  the 
people ;  no  public  debt,  and,  in  short,  none  of  the  num 
berless  devices  which  are  foisted  upon  the  people 
whether  they  will  or  no,  upon  pretenses  good  or  bad, 
inventions  of  the  Medicis  and  the  Machiavellians  of 
history  who  worked  the  incantations  of  power  and 
glory  in  benighted  times.  But  they  are  worked  today, 
for  one  of  the  strange  paradoxes  in  the  political 
thought  of  the  masses  is  the  pride  and  satisfaction 

207 


OBSERVATIONS  ON  DEMOCRACY. 

which  they  manifest  in  granting  to  a  central  body 
far  away  the  very  power  by  which  their  rights  are 
admittedly  infringed. 

It  follows  from  what  has  been  said  that  the  com 
ponents  of  democracy  are  the  free  city,  the  free  town 
ship,  the  free  county  and  the  free  state,  co-operating 
in  a  synthetic  process  to  the  national  government. 
This  is  the  ideal  of  democracy.  There  can  be  no  re 
public  without  it.  Our  fathers  learned  the  lesson  from 
the  free  cities  of  Italy  and  the  Netherlands,  and  the 
truth  of  local  self-government  is  so  obvious  that  the 
very  statement  of  the  proposition  exhausts  explana 
tion  and  comment  And  in  good  report  and  ill,  in 
spite  of  falsehood  and  sophistry,  the  democracy  has 
adhered  to  this  principle.  There  never  was  a  time 
when  democratic  leaders  were  not  in  favor  of  a  nation, 
although  there  was  honest  difference  of  opinion  as  to 
the  powers  of  the  nation.  But  the  process  to  which 
democracy  was  ever  and  ever  will  be  a  remorseless 
foe  is  the  accumulation  of  all  power  in  the  hands  of 
a  few  men,  which  was  the  hobby  of  Hamilton  and 
which  in  our  day  has  almost  come  to  pass. 

And  as  inclusive  of  all  that  has  been  defined  demo 
cratic  government  extends  to  the  enforcement  of  the 
law  of  equal  freedom.  It  is  a  simple  policy.  It  does 
not  abound  in  promises  of  favors ;  it  only  insures  jus 
tice.  It  does  not  appeal  to  the  vision  in  glorious  pa 
geants  ;  it  convinces  the  intellect  by  its  logic ;  it  warms 
the  heart  by  its  humanity.  It  does  not  symbolize  it 
self  in  serried  ranks  of  armed  men,  through  which  the 
ruler  rides  amidst  the  plaudits  of  those  who  claw  the 
cap  from  the  peaked  head,  while  women  weep  and 

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OBSERVATIONS  ON  DEMOCRACY. 

strong  men  faint  with  emotion  at  the  sight  of  God- 
given  power.  It  parades  no  squadron  of  battleships 
before  the  blurred  eyes  of  sycophants  and  sentimental 
ists.  It  cares  nothing  for  tinsel  and  finery,  for  black 
robes  and  wigs,  for  that  mummery  and  pretense  which 
is  practiced  to  overawe  the  sentiments  of  those  who 
are  in  the  humble  walks  of  life  and  convince  them 
that  its  functions  are  intrusted  to  the  anointed,  and 
that  those  who  are  predestined  to  service  and  labor 
must  obey  implicitly  and  pay  entirely. 

But  what  is  the  symbol  of  democracy?  It  is  the 
carpenter,  the  mechanic,  the  boatman,  the  shoemaker, 
the  farmer,  the  tradesman,  the  banker,  the  lawyer,  the 
philosopher,  each  in  his  way  of  life  doing  the  world's 
work,  protected  by  his  own  government  in  his  right 
ful  liberty,  and  in  the  aggregate  mass  of  robust  justice 
and  honorable  strength  reserving  a  power  for  perpet 
uation  which  only  internal  corruption  can  destroy. 
Its  apparel  is  that  of  Lincoln,  and  its  surroundings 
are  the  books  and  the  hospitality  of  Jefferson — things 
which  do  not  cloud  the  eyes  or  enslave  the  feelings, 
but  which  in  their  simple  majesty  and  merit  are  the 
enduring  and  beneficent  pictures  of  history. 

It  follows  that  what  is  the  strength  of  democracy 
is  its  weakness.  It  does  not  promise  something  for 
nothing;  it  does  not  argue  that  to  take  from  one  part 
and  add  to  the  other  part  increases  the  bulk  of  the 
whole ;  that  to  tax  the  many  for  the  few  enriches  all ; 
that  to  subsidize  a  private  enterprise  is  profitable  to 
those  who  are  interested  only  in  paying  the  subsidy; 
that  wealth  can  be  created  by  taxation;  that  to  pay 
interest  on  a  large  and  growing  public  debt  is  bene- 

209 


OBSERVATIONS  ON  DEMOCRACY. 

ficial  to  the  people;  that  a  surplus  locked  up  in  the 
treasury  drawn  by  taxation  is  a  sign  of  prosperity— 
none  of  those  things  does  it  pretend,  promise  or 
preach.  It  offers  nothing  but  equal  freedom  to  all.  To 
those  who  want  more  democracy  is  not  attractive; 
upon  those  who  are  deceived  into  taking  less  its  warn 
ings  are  lost.  For  the  malevolent  side  of  life  shadows 
every  virtue  with  a  fault.  And  no  question  can  be  so 
fairly,  so  clearly  stated  that  ingenious  sophistry  will 
not  give  it  an  evil  aspect. 

To  instance  this  let  us  take  a  few  examples  from 
history.  Those  who  opposed  and  oppose  the  tariff  are 
in  favor  of  pauper  labor;  they  are  inimical  to  Ameri 
can  industry;  they  believe  in  a  cheap  man  and  a  cheap 
coat;  those  who  struggle  against  centralization  in 
government  are  loose  in  their  morals ;  they  are  not  in 
favor  of  order  and  law;  those  who  decry  the  subjuga 
tion  of  feeble  peoples  and  the  taking  of  their  country 
are  cowards;  they  are  weaklings;  they  are  behind  the 
times;  they  are  disloyal,  unpatriotic;  they  are  rebels 
at  heart,  the  offshoots  of  impotent  treason  in  days 
past.  Groundless  as  are  these  charges,  aimless  and 
foolish  as  they  are,  they  are  preferred  on  a  deep  and 
astute  principle,  viz.,  that  men  must  rely  for  their  guid 
ance  on  what  is  said  by  men  who  talk  and  editors  who 
write,  that  the  majority  of  men  cannot  personally  in 
vestigate  these  questions  and  that  reiteration  of  these 
calumnies  will  instill  a  spirit  of  skepticism  of  the  best 
motives  and  the  purest  professions.  This  course  is  as 
old  as  the  discussion  of  public  questions.  It  is  the 
warfare  of  vile  debate,  through  which  humanity  drags 


210 


OBSERVATIONS  ON  DEMOCRACY. 

its  feet  by  difficult  steps  or  from  which  humanity  stag 
gers  back  into  the  shadows  of  a  perished  century. 

Finally,  democracy  is  intensely  practical.  It  has 
no  refined  and  protracted  problems  to  solve,  such  as 
afflict  the  system  of  socialism.  It  need  not  concern 
itself  with  how  property  shall  be  first  divided  and 
afterward  how  it  shall  be  kept  in  a  condition  of  equal 
ity;  how  many  hours  men  shall  work;  what  they 
shall  eat  if  they  do  work  or  what  if  they  do  not ;  what 
schooling  shall  be  maintained.  It  has  no  devious 
course  of  idealism  to  trace  out  and  explore  before  it 
can  set  to  work,  and  no  unforeseen  steps  to  trust  to 
luck,  beyond  the  limits  of  forethought. 

Democracy  outlines  her  program  in  a  few  simple 
words:  Men  shall  enjoy  liberty  of  action  up  to  the 
limit  of  the  same  liberty  for  all  men;  there  shall  be 
equal  freedom;  he  who  infringes  this  rule  shall  be 
punished.  Under  this  benign  system  democracy  knows 
that  humanity  will  progress,  because  the  individual 
must  develop.  It  is  not  a  prophecy,  but  a  fact.  The 
state  neither  adds  to  nor  takes  from  the  law  of  the 
survival  of  the  fittest.  The  task  of  mitigating  that  law 
it  leaves  to  man  in  his  private  life,  in  his  condition  of 
untrammeled  strength  which  results  from  freedom.  To 
what  end  shall  there  be  special  privilege?  To  what 
end  shall  a  class  be  created  or  an  aristocracy  of  wealth 
or  prerogative  established?  How  often  has  the  aristoc 
racy  produced  men  who  furnished  humanity  with 
philosophy,  invention,  discovery  or  statesmanship? 
And  whenever  an  aristocracy  has  produced  such  men 
how  have  they  risen  to  real  greatness  except  by  fol- 

211 


OBSERVATIONS  ON  DEMOCRACY. 

lowing  with  more  or  less  faithfulness  the  principle  of 
liberty? 

Democracy  draws  no  long  face  about  charity,  nor 
does  it  whine  about  love.  Democracy  is  content  with 
justice,  which  is  practicable  and  which  the  state  can 
and  ought  to  enforce.  No  amount  of  preaching  can 
make  men  love  each  other,  and  involuntary  charity, 
such  as  the  state  sometimes  commands,  leads  to  ex 
tensive  abuse.  State  charity  covers  from  the  eyes  of 
the  people  a  multitude  of  political  sins.  Democracy 
nourishes  the  feelings  of  individual  worth  and  culti 
vates  proper  pride.  It  abhors  the  snob  and  the  lackey. 
Founded  upon  freedom,  it  has  no  cause  to  serve  except 
humanity.  It  owes  no  personal  fealty.  It  cares  noth 
ing  for  that  patriotism  which  consists  in  cringing 
adoration  of  an  administration.  It  is  indifferent  to 
the  flag  when  it  degenerates  into  a  piece  of  gorgeous 
bunting  and  no  longer  represents  anything  but  force. 

Whatever  is  independent,  progressive  and  self-reli 
ant  in  Americans,  whatever  in  them  is  noble  and  just, 
they  owe  to  democracy.  It  is  democracy  that  makes 
them  demand  their  rights  and  insist  on  fair  play  for 
all.  It  is  democracy  that  keeps  the  way  open  for  the 
unbounded  energy  of  Americans.  It  is  democracy 
that  laughs  at  cant  and  slaps  the  solemn  jowls  of  hy 
pocrisy.  It  is  the  hard  head  of  democracy  that  re 
fuses  to  be  turned  by  pompous  silliness  and  that  scoffs 
at  pretense.  It  is  democracy  that  gives  sincerity  to  life 
and  its  endeavors.  It  is  democracy  that  is  regardless 
of  a  man's  purse  or  his  clothes,  but  looks  to  his  mind, 
his  virtues  and  his  manners.  It  is  democracy  that  re 
spects  the  toiler,  whether  he  toil  with  his  hands  or 

212 


OBSERVATIONS  ON  DEMOCRACY. 

with  his  brains.  It  is  democracy  that  believes  in  the 
aristocracy  of  ability  and  morality  and  is  glad  to  see 
a  frock  coat  on  the  back  of  any  man  who  has  earned 
it.  It  is  democracy  that  is  subduing  the  hands  which 
are  opposing  it,  that  is  bringing  freedom  of  trade  to 
America,  and  by  slow  but  sure  processes  is  establish 
ing  all  it  has  contended  for — while  these  ideas,  which 
are  not  for  an  age,  but  for  all  time  so  long  as  the  world 
is  as  it  is,  are  progressing  to  the  uttermost  parts  of  the 
globe. 


213 


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DESK  FROM  WHICH  BORROWED 

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